February 1997 R ELIEF AND REHABILITATION NETWORK RRN 19 paper NETWORK

Human rights and international legal standards: what do relief workers need to know?

James Darcy

Abstract

he concept of human rights is increasingly ICRC and of UNHCR are examined in the context invoked in the context of humanitarian of a discussion of humanitarian law and refugee law Temergencies; yet the moral and legal basis respectively. From that follows a general discussion for the claims involved are often little understood. of protection and assistance activities, the relationship This paper aims to describe the basic moral and legal between them, and the tensions and potential framework of human rights; to look at issues of dilemmas that arise in seeking to combine human responsibility, protection and enforcement in the light rights advocacy with relief assistance. of international legal obligations; and to relate this to the work of humanitarian agencies in their attempts The basic thesis is that humanitarian actions – to provide asssistance and protection to communities assistance and protection – are properly seen as part affected by conflict and other disasters. of a spectrum of human rights activity; in other words, it is an argument for the recognition of The legal framework involves a sometimes confusing humanitarian rights in the broader sense, including patchwork of provisions from different branches of but not limited to relief. The paper concludes with international law: human rights law, humanitarian a number of recommendations, including a call to law (the Geneva Conventions), and refugee law. The make an assessment of protection needs part of every key features of these provisions, and the way they needs assessment, and to calculate and minimise the relate to each other, are explored in this paper. More potential negative side-effects of relief interventions. specifically, the particular role and mandate of the Please send comments on this paper to:

Relief and Rehabilitation Network Overseas Development Institute Portland House Stag Place London SW1E 5DP United Kingdom Tel: +44 (0) 171 393 1674/47 Fax: +44 (0) 171 393 1699 Email: [email protected] Web site: http://www.oneworld.org/odi/rrn/index.html

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ISBN: 0-85003-249-0

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© Overseas Development Institute, London, 1997.

Photocopies of all or part of this publication may be made providing that the source is acknowledged. Requests for commercial reproduction of Network material should be directed to ODI as copyright holders. The Network Coordinator would appreciate receiving details of any use of this material in training, research or programme design, implementation or evaluation. Contents

1. Introduction 5

2. Different traditions: human rights and humanitarianism 7

3. Moral and legal rights 9

4. Human rights in law 12

5. Responsibility for protection and enforcement 15

6. Human rights in armed conflict 23

7. Human rights, refugees and internal displacement 27

8. Protection and assistance 32

9. Conclusion and recommendations 34

Endnotes 37

Bibliography 38

Boxes

Box 1 United Nations Charter 19 Box 2 Rights and Freedoms in the Covenant on Civil and Political Rights 1966 20 Box 3 International Covenant on Economic, Social and Cultural Rights 1966 21 Box 4 Extracts from 1948 Convention on the Prevention and Punishment of the Crime of Genocide 22 Box 5 Article 3, common to the four Geneva Conventions of 1949 25

practice withpublicdenunciation ofabuse. of reliefisoftenfeltto beincompatiblein access withthosesameparties fortheprovision denial –thoughtheneed tonegotiatesafe described intermsofhuman rightsabuseor well-being posedbythewarringpartiesare civilian status.Threatstotheirsecurityand to protectionfromviolencebyreasonoftheir Others stresstherightofpeopleaffected agencies havearighttodeliverthatassistance. assistance. Sometimesisclaimedthatexternal people concerned,itissaid,havearightto populations caughtupinarmedconflict.The attempts tobringreliefassistancecivilian relief, ofteninreactiontothefrustrationof being invoked inthecontext ofhumanitarian The conceptofhumanrightsisincreasingly on whichtheyarefounded? nature ofhumanrightsclaims,andthebasis behaviour.really Butdowe understandthe kind of‘trumpcard’inargumentsaboutmoral it carriesacertainmoralforceandactsas understood andaccepted.Itisausefulphrase: W assume thatitsmeaningis It issofamiliarthatwetendto e allusethephrasehumanrights. Introduction 1 involve ofstates’ recognition andothers’ agencies. Theachievement ofthataimwill accountability fortheactions ofhumanitarian establish aconsistent measureof people havearighttoexpect. Theaimisto charter’ settingoutwhat,asaminimum, and attemptstodefineakindof‘humanitarian minimum standardsofhumanitarianresponse; general concernwithdefiningandachieving This argumentispartlyareflectionof rhetoric. standards ifitistoengageinmorethanempty rights canaffordtobeignorantoftherelevant which professesacommitmenttohuman in humanrightsprinciples.Butnoagency humanitarian actioncanandshouldberooted codify them.Itisarguedbelowthat standards andthelegalprovisionswhich be familiarwiththerelevanthumanrights engaged humanitarianwork,itisessentialto This paperiswritteninthebeliefthatforthose may beunabletoassertthemforthemselves. people whoserightsarethreatenedandwho advocacy: theassertionofrightsonbehalf described aboveareformsofhumanrights Inwhateverforumtheyaremade,theclaims

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HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ responsibilities, and agencies working to more A wide view is taken of human rights law, so clearly defined roles – embracing the work of that international humanitarian law (the relief agencies, those engaged in protection Geneva Conventions etc.) and refugee law are activities in the field, and the advocacy work included under this heading. A related and of human rights agencies. Consistent subsidiary aim of this paper is to examine the application of human rights standards, it is role and mandate of two agencies concerned argued, can provide a framework which unites specifically with these areas of law: these activities, helps answer apparent respectively, the ICRC and UNHCR. A dilemmas – and relates humanitarian action discussion of the connection between to development initiatives. For those protection and assistance activities follows concerned with the protection of conflict- from this. affected populations, there is a potentially confusing patchwork of provisions from Some of what follows is a statement of fact; different branches of international law: some of it is a matter of interpretation, on human rights, humanitarian, and refugee. which feedback would be welcome. In a paper of this length, of course, it not possible to cover The purpose of this paper, therefore, is three- these subjects in depth. The author is fold: currently engaged in producing a manual for Oxfam UK/I which covers the subject in some 1. To attempt to sketch the basic moral and detail and which provides a guide to relevant legal framework of human rights. human rights and other legal provisions. 2. To look at issues of responsibility, Many materials already exist on the individual protection and enforcement in the light topics under discussion: for a short list of of international legal obligations. recommended reading, please see the 3. To relate this to the work of bibliography at the end of the paper. humanitarian agencies in their attempts to provide assistance and protection to communities affected by conflict and other disasters.

The author works for Oxfam UK/I as Emergencies Coordinator for Asia. He is also a UK- qualified lawyer. This paper has been written in his personal capacity, and the views expressed in it are not necessarily those of Oxfam UK/I.

[email protected] c/o Oxfam UK/I, 274 Banbury Road, Oxford OX2 7DU, UK. International Legal Standards and

6 HUMAN RIGHTS

6 denial ofequality –intheformof political, feature ofboth,ashas discrimination–a democratic expression has beenacommon regimes. Lossordenial oflibertyand of opponentstotalitarian orcolonial and thepersecutionviolentsuppression twoWorld Wars, above allintheHolocaust; against civiliansandnon-combatantsinthe two mainfactors:theatrocitiescommitted in thetwentiethcenturyhasbeenspurredby Thedevelopmentofuniversalhumanrights of 1948. the UniversalDeclarationofHumanRights standards basedontheprinciplessetoutin and theformulationofinternationallegal including thefoundingofUnitedNations tothedevelopmentsthrough ofthiscentury, movement andtheabolitionofslavetrade subsequent historyintheemancipation distorted, theconceptcanbetracedthrough andequality.liberty sometimes Though and justifiedbyreferencetoprinciplesof century. ‘rights ofman’The were asserted T Different traditions: French revolutionsinthelateeighteenth be traced back to he modernconceptofhumanrightscan human rightsand humanitarianism the Amer ican and 2 duties, andthedutiesof the stateinclude,asa aspects. Itcarrieswith itbothrightsand of internationallawand relations,hastwo sovereignty, remainsthecorner-stone which it canbeseenasarecognition thatstate concern, wasarevolutionarystep.Thatsaid, law,of international andsoofinternational The recognitionofindividualsas‘subjects’ its territory–providedinsufficientsafeguards. state’s behaviour towards individualswithin sovereignty andareluctancetoquestion relations rested–absoluterespectfornational that thepreviousbasisonwhichinternational the curtainofsovereignty. Itis arecognition involved, of apullingback tosomeextent, international recognitiontohumanrightshas The processofdefiningandgiving human. discrimination, treatinghumanbeingsassub- Genocide canbeseenastheultimateformof culture, cannotjustifydifferentialtreatment. characteristics, ordifferencesofbelief that differencesofrace,sexandotherhuman heart ofhumanrights;thatis,theprinciple principle ofnon-discriminationliesatthe social andeconomicmarginalisation.The

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HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ minimum, the protection of the human rights being called into question, as are the ethics of of those within its sovereign jurisdiction. providing relief assistance in complex political Failure to do so may call into question a state’s emergencies. sovereign rights, and so its very legitimacy. One of the purposes of this paper is to suggest that a rights analysis can provide a basis for The concept of state (and so government) addressing the ethical questions involved in responsibility remains at the heart of human providing humanitarian assistance, and for rights, and will be stressed throughout this clarifying the roles and responsibilities of the paper. But human rights responsibilities go agencies concerned. This implies that the two beyond the state, and we shall look at this issue traditions sketched above can be closely below. The mainstream of the rights tradition related. has tended to place the greatest value on liberty, and to assume that, left to live their There is one obvious link between the own lives, people will thrive. It is only in traditions: both are universal in their later years that more positive claims have been application, and based on a recognition that made on the state, a recognition that liberty our shared humanity makes certain demands may be of little value if accompanied by on us. Both, too, can be linked to an analysis disabling poverty. of human need, though human rights are more broadly conceived to include all those aspects The humanitarian tradition – if it can be called of an individual’s physical, economic, political a single tradition – has been more obviously and social security which it is believed concerned with basic human needs. It is an essential to safeguard in any society. But older tradition, impossible to date – it is whereas humanitarianism has tended to rely evident even in Homer’s Iliad , the bloodiest on an impulse of private charity, human rights of epics, but is by no means an exclusively have always had a public and political aspect. ‘western’ phenomenon. It has a history in It is this aspect of human rights which has Islam, Christianity, Buddhism and other sometimes caused relief workers to view them religions. Of particular concern have been warily – coupled with the fear that situations of armed conflict where a involvement in such issues will jeopardise their defenceless individual requires urgent relief activities. That said, the provision of assistance and protection from the effects of relief itself has increasingly been recognised a conflict in which they are playing no direct as having, to a greater or lesser extent, a part. The Red Cross movement, governed by political dimension. principles of neutrality and impartiality, is the clearest expression of this tradition, and the The argument of this paper is that development of international humanitarian humanitarian actions should themselves be law which it sponsored has gone some way to seen as one part of a spectrum of human rights establishing humanitarian action on a set of activities: that assistance and protection are rights. The widely-shared belief in the closely related activities that can and should existence of a humanitarian imperative implies be justified in human rights terms. Relief a duty to act in the face of human suffering, assistance can be described in terms of the without assigning more specific rights and fulfilment of certain claims that human rights duties. Whatever the basis for relief activities make on us. This may be a different type of International Legal Standards – and certainly the motivation for them is most activity to advocacy aimed at preventing the

and easily described in terms of compassion and abuse or denial of human rights; but they are the desire to relieve suffering in fellow human clearly related. This will be taken up again beings – they are today to a great extent below. What we shall look at before then is delegated to specialised relief agencies, the nature of the claims that human rights governmental and others. The way in which make, what the corresponding duties are, and this function is performed is increasingly who is responsible for fulfilling them. 8 HUMAN RIGHTS

8 it recognisesthatindividuals havesuch been codified,thelawdid notcreatetherights: with thelegalforminwhich thoserightshave Though muchofwhat follows isconcerned Human rightsarefundamentally moralclaims. benefits ofliving insociety. that allindividualsandgroupssharethe in society;and,ontheotherhand,toensure the potentialthreatsandlimitationsofliving secure individualandgroupinterestsagainst it isperhapstheneed,ononehand,to a singlerationaleunderlyingallhumanrights, defining thecorrespondingduties.Ifthereis one ofdefiningtheclaimsinquestion,and them? Thehistoryofhumanrightshasbeen claims consistof,andfromwhomcanweclaim by virtueofourhumanity. Butwhat dothose described asclaimsthatweallhavesimply another.against canbe Humanrights may bemoralorlegal,thatonepartymakes rights asvalidclaimsorentitlements,which act inacertainway’. grounds, tohaveorobtainsomething, W justifiable claim,onlegalormoral definition describesitasa hat isaright?Onedictionary Moral andlegal 1 Itisusefultothinkof rights 3 political statusfrom which flowcertain claims torecognition of civil,legaland freedom ofassociation. Second,theymake freedom ofspeech, ofmovementand in community.example, Sofor therightsto allowed toactasonewishes,individuallyand be leftalone,nottointerferedwith, of claim.First,theymake‘liberty’claims:to and politicalrightsmakeroughlythreesorts convglobal humanrights out asummaryoftherightsintwomain on pages20and21respectively],whichsets It mayhelptolookatthelist[Boxes2and3 sortsofclaimdohumanrightsinvolve?What of societyandthestate. themselves infringed,ortoensurethesecurity ensure thattherightsofothersarenot rights andfreedomsarethosenecessaryto absolute rights.Thelimitssetonhuman their coremeaning.Noraretheyalways safeguards thatshouldnotbestretchedbeyond they constituteasetofessentialminimum principles, anditisimportanttorealisethat rights arerespected.Theyremainfairlybroad undertakings bystatestoensurethatthose (moral) andinvolves rights (legal) formal entions. The civil The entions.

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HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ safeguards and rights of political and legal and the creation of conditions where people access – hence for example the right to a fair (individually and collectively) can pursue trial. Third, and crucially, are various viable livelihoods and satisfy their own needs. prohibitions mostly framed as ‘freedoms It is in this respect that they are most obviously from’: these include the right of freedom from linked to the first generation rights, and why torture. the two sets are rightly said to be indivisible. The concept of justice, in its concern with due The right to life itself probably belongs in this process on the one hand and with fair last group. Until recently it was interpreted distribution of goods on the other, may be said in negative terms: the right not to be arbitrarily to link the two strands. So do the related deprived of one’s life. More recently there concepts of non-discrimination and have been moves in the UN to expand its consistency of treatment. interpretation to encompass a duty to take positive steps to preserve life – a development If human rights are claims, who are they of obvious relevance to relief workers. The claims against? In legal terms, they are original interpretation remains of particular framed as claims against the state: and relevance for civilians in conflict. (crucially) most states have recognised the validity of those claims by ratifying human The economic, social and cultural rights rights treaties and so formally accepting their include a number of claims that are of a obligation to respect and ensure the rights in different type: they are claims to social question to all within their territory and subject security and a certain standard of living, to their jurisdiction. including claims to adequate food, clothing, housing, health care, and education. The In moral terms, human rights are claims we duties accepted by states to achieve fulfilment all have against everyone else; that is, they of these rights are of a more qualified sort are not restricted to the relationship between (see section 4); but these rights should be of state and individual. Since humanitarian central concern to humanitarian and agencies are likely to base their advocacy as development workers. This set of rights – much on moral as on legal grounds, it is sometimes called ‘second generation’ rights important to say that (for example) a rebel – addresses the issue of poverty, as the first movement may with equal justification be generation addressed the issue of threats to accused of human rights abuse as may liberty. The failure to make progress on the government forces, even though they are not fulfilment of these rights, and indeed the lack party to the relevant conventions. It is just of international commitment to their the terms in which the argument is made that fulfilment, has been one of the chief failings may differ. of the human rights movement. It is reflected in the language used: we talk about human Human rights claims are universal in that, if rights abuse, even human rights denial; but they are valid at all, they are valid for perhaps we should talk also of human rights everyone, since they are based on general neglect. Denial or neglect, accompanied by assumptions about human needs and discrimination, is the cause not only of chronic capacities. But are those claims – and the suffering but potentially also of armed corresponding duties – universally recognised International Legal Standards conflict and its humanitarian consequences. and equally respected? The answer is no,

and though the differences tend to arise less from It would be wrong to characterise this second a fundamental clash of cultural values than set of rights as welfare claims by passive from a difference of emphasis. Certainly, for recipients. They do imply certain welfare example, in Islamic states, duty has tended to entitlements where individuals and be stressed over rights, human rights being communities lack the ability to secure seen in the light of the overriding duty to obey 10 subsistence needs for themselves. But just as God’s law. In Asia, second generation rights

HUMAN RIGHTS importantly, they are about equitable access have tended to be prioritised over first

10 economic andsocialrights,individualversus fairly constant:civilandpoliticalversus and South,thesubstanceofdebateremains debate hasnowshiftedtoonebetweenNorth within andbetweenstates.Iftheideological arguably requiringaredistributionofwealth universal minimumwelfareentitlements,and democratic principles;thesecondimplying and seemingtorequireadherence first generationstressingindividualliberty contain theseedsofideologicaldifference: sets ofrightsdiscussedabovethemselves W differencesbetween Eastand Second WorldWar ref The humanrightscodedrawnupafterthe individuals. development asmuchontherightsof generation’) rightstoself-determinationor tended tofocusonthecollective(‘third genera tion. In Afr tion. In ica, talkabout rights has lected theideological est. The two The est. breaches. form) tochampionthoserightsandprevent willingness topursueadvocacy(inwhatever commitment tohumanrightsimpliesa problems ofimplementation;butintheenda ‘battering ram’,andrecogniselegitimate politicians ofhumanrightsasanideological standar pressure onotherstatestoadoptthesame consensus generatesbothmoralandpolitical rights amongstatesandbetweencultures.That of providingevidenceconsensusabout Human rightslawfulfilstheusefulfunction differencestranscends of political ideology. above, theprincipleisavitalone,and interdependent’. Butforthereasonsindicated spectrum ofhumanrightsis‘indivisibleand threaten tobreaktheconsensusthat The differencesofemphasissometimes collective liberty interests, versusequality. ds. We may be wary of of wary be We may ds. the useby

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Human rights in law

he first place to look for legal protection observance and protection of human rights. of human rights is in national legislation In their internal aspect, they involve an Tand the law enforcement mechanisms equivalent undertaking to the holders of the of the state. Most human rights safeguards that rights, that is, to every individual within the exist will be found here: for example, laws state’s jurisdiction. In becoming party to a against murder reflect the right to life, one of human rights treaty, a state undertakes to many human rights principles that pre-date the ensure that its national policies and legislation modern human rights movement. The law of conform to the relevant standards, and to habeas corpus (freedom from unjustified guarantee to individuals effective remedy for detention) is another example. Some of the abuse. So international law sets standards most fundamental rights are protected in state which are to be implemented through national constitutions, of which the most famous and policies and legislation. It provides a blue- the most common model is the US print by which to judge national legislation, Constitution and Bill of Rights. as well as a state’s behaviour towards all those within its territory. So why concentrate on international law? Not because protection against human rights abuse That, of course, is the theory. In practice, is best pursued at the international level: it is abusive behaviour not only goes unpunished International Legal Standards

not. But international human rights law, but is in many cases actually perpetrated by founded on the principles set out in the the state through its agents (police, army etc.). and Universal Declaration of Human Rights in In other words, the very body which 1948, formulates legal standards to which state undertakes to protect human rights, and is parties to the relevant conventions have charged with that responsibility, may be committed themselves. These have an external unable to provide protection or may itself be and an internal aspect. In their external aspect, the source of the threat. That threat may be they amount to a set of binding undertakings overt or covert; and it may be posed by (for to other state parties in respect of the example) measures which are grossly HUMAN RIGHTS

12 factors. The inconsistencyofstates in left tostatesandbe dictated bypolitical judgment andenforcement hastendedtobe enforcement mechanism: thebusinessof should have.Third,there isnouniversal if thestatesindisputehaveagreedthatit of Justice,forexample,hasjurisdictiononly of internationallaw:theInternationalCourt jurisdiction toruleauthoritativelyonanyissue is nosinglecourtwhichhasuniversal UN hastendedtoplaythatrole.Second,there though inrespectofhumanrightsatleastthe thereFirst, isnosinglelaw-making body, law. ofotherways from national in anumber essentially consensual,andisverydifferent International lawispeculiarinbeing elaboration. theGenevaexample) Conventions arean general humanitarianprinciplesofwhich(for thantreaty law,is lesscertain butitincludes endorse them.Thecontentofcustomarylaw all statesregardlessofwhethertheyexplicitly ‘customary’of law, international bindingon by consistentstatepracticeovertimeasrules Certain principlesoflawbecomeestablished a remedyforabuse. access tointernationalmechanismsinseeking in thefactthatindividualshaveveryrestricted but totheotherstateparties.Thisisreflected individuals whoserightsaretobeprotected obligation ininternationallawnottothe a statepartytohumanrightstreatyowesits to thesametreaty. Strictly speaking,therefore, those statesinrespectofalltheotherparties states puttheirname,itimposesdutieson through themechanismoftreatiestowhich itself withinter-staterelations.Primarily significant part.Internationallawconcerns law,international thoughanincreasingly Human rightsareonlyonepartof examined inthenextsection. the issuesofprotectionandenforcement,are other partiesinrespectofhumanrights,and in situ human rightsabusemustlookforprotection refugees andasylum.Butmostwhosuffer international protectioninthecontextof Wepopulation. shalllookbelow at issuesof discriminatory againstonesectionofthe Theresponsibilityofthestateand Box 4onpage 22]remainssadly relevant abuses. GenocideConventionThe (1948)[see have givenlegalprotection againstspecific Various otherinstruments,beforeand since, to thedeclarationofintent. and Culturalrights–thatlegalformwasgiven Political Rights,theotherEconomic,Social Covenants of1966–onecoveringCiviland It wasnotuntilthetwinInternational it wasnotitselfalegallybindinginstrument. a blue-printforinternationalhumanrights,but of HumanRightsfilledthatgap,andremains those rights.The1948UniversalDeclaration respect ofhumanrightsbutdidnotspellout – containsimportantgeneralundertakingsin page 19] be mentioned.TheUNCharter[seeBox1on relevant humanrightstreaties,butsomemust There isnotspaceheretorunthroughallthe respect. rights monitoringmaybecrucialinthis journalists andothersconcernedwithhuman investigative ofindependent The role representative andresponsivegovernment. channels offreeexpressionandforms Education isoneaspectofthis.Sotooare and insistedonbythosewhoholdthem. rights dependsontheirbeingknown,valued Ultimately, however, therealisationof human commitments theyhavemade. political agendasshouldkeepstatestothe those bodieswhicharenotdrivenbystate- application ofhumanrightsstandardsthat state behaviour. Itisessentialtotheconsistent increasingly usedastheyardsticktojudge is anomalous.Thatsaid,humanrightsare in thatrespectitsconcernwithhumanrights protecting theinterestsofsovereignstates,and inherent characteristics.Itisessentiallyabout judgment andenforcementisoneofits international lawandofitsmethods The fundamentallypoliticalnatureof sincetheendingofColdWar.the years states hasbecomemuchmoreprominentin authorising theuseofforceagainsterrant policing roleinimposingsanctionsor resolutions oftheUNSecurityCouncil,whose performing thisfunctionisillustratedbythe

– towhichalmostallstatesareparty

13 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ today, though states have failed to live up to treaties mentioned above, and it is clearly their individual and collective responsibility important to be aware of whether human rights to ‘prevent and punish’ genocide, surely the case law is based on explicit legal ultimate abuse of human rights. Other undertakings or simply on moral obligation. conventions elaborate on the general In making a case on legal grounds, we have prohibitions against torture (1984) and slavery the advantage of quoting states’ own words (various). Racial discrimination and back to them. discrimination against women are the subject of treaties signed in 1966 and 1978 Second, in certain circumstances, states are respectively. More recently, the Convention permitted to ‘derogate from’ (suspend or on the Rights of the Child (1989), which limit) the application of legal human rights elaborates on the general provision for the guarantees. Derogation is only permissible protection of children, has proved its value in in time of public emergency which threatens a number of different contexts. [see the life of the nation. Any such measures must forthcoming Network Paper 21 by Iain Levine be officially proclaimed, be non- Humanitarian Principles: the South Sudan discriminatory, and be limited to the extent experience]. ‘strictly required by the exigencies of the situation’. Crucially, certain rights can never Of the other relevant treaties, it is important be derogated from: the right to life, to freedom to mention the regional human rights of thought, to recognition as a person before conventions and mechanisms in Europe, Latin the law; freedom from torture etc., from America and Africa. (There is no equivalent slavery, from imprisonment for debt, and from in Asia.) The provisions of these treaties are prosecution under retroactive criminal laws. broadly in line with those in the global human rights treaties. Third, subject to derogation, human rights laws continue to apply during armed conflict. We Both the global and regional conventions have shall look below at how these standards are corresponding review mechanisms, though supplemented by the provisions of only in two cases – the European and Inter- international humanitarian law (the Geneva American human rights courts – do these Conventions and Protocols), which is a include effective judicial mechanisms. The separate but related strand of law. Human nature and workings of the UN and regional rights standards apply to refugees and human rights bodies are beyond the scope of internally displaced as well; though in the case this paper. They provide a more or less of refugees, specific provision is made by effective mechanism for scrutinising states’ international refugee law. This, again, is a performance against their international legal separate but related branch of law, and is obligations. The sanctions against failure are discussed below. largely politically determined. For the most part, it is unrealistic to expect urgent Finally, a word on how the content of human protection issues to be dealt with effectively rights law relates to humanitarian relief. We through these bodies. But their work, informed have said that the human rights tradition has by reports from human rights and other not placed concern with meeting immediate organisations, is an important part of the basic needs at its centre. Outside humanitarian International Legal Standards standard setting function of their respective law, the rights foundation for relief assistance

and parent organisations. The appointment of a is founded mainly on the right to life on the UN High Commissioner for Human Rights has one hand and the principles set out in the raised hopes (as yet unfulfilled) that human Economic Covenant on the other. The latter rights protection will come higher on member states the principle that everyone has a right states’ agendas. to adequate food, shelter and clothing; to freedom from hunger; and to the highest 14 Some final remarks before going on. First, attainable standard of physical and mental

HUMAN RIGHTS not all states are signatories of the global health. The obligations it sets to achieve these

14 to avoidpreventablelossoflife.Thiswould execution –butmorepositivelytotakesteps arbitrary deprivationoflife–e.g.summary not justtorefrainfromandprotectagainst by theUNHumanRightsCommitteeasaduty commitment toprotection.Thisisinterpreted The righttolifeimpliesanimmediate individual. resources, theyremaintherightof to befulfilledprogressivelydependenton Though theseareframedinconditionalterms, collectively. bindingonstates aims are shelter, andsoon. to theindividual’sto tofood, tolife, right duty toproviderelief,acorresponding best framedintermsofthefulfilmenta needs. The‘rightofhumanitarianaccess’is people’s lives areunderthreat forwantofbasic least toallowreliefbeprovided,where meaning, anobligationtoproviderelief,orat be takentoinclude,withoutstretchingthe serious communicablediseases.Itcanalso an obligationtovaccinatechildrenagainst conflict. Butitwouldinclude,forexample, apply tothelivesofciviliansintime

15 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○ 5 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Responsibility for protection and enforcement

n legal terms, responsibility for protecting are not otherwise protected by the state. The human rights lies with the state first and difficulties of providing international Iforemost. This remains true even where protection in such circumstances are notorious the state’s agents are themselves the abusing – witness the ‘safe areas’ initiative in former parties, or are unable to provide the necessary Yugoslavia – and most such efforts take the protection against threats to human rights form of external pressure aimed at ensuring posed by third parties. Specific responsibilities that the state itself fulfils its obligations. are vested in the state’s agents – Increasingly the use or threat of sanctions or administration, legislature, courts, police, the suspension of trade concessions are used army, civil servants – all of whose activities in an attempt to apply leverage on the have a bearing on the protection and fulfilment offending state. Making aid transfers of human rights. To some extent this is a conditional on human rights performance falls question of maintaining ‘law and order’, with in the same category. the qualification that the law must govern the activities of the state’s own agents, and must The problems with such approaches are well itself satisfy the requirements of justice. known: while humanitarian assistance is generally exempted, economic penalties tend Beyond national boundaries, failure to comply to hit the poorest hardest and may have little

International Legal Standards impact on government policy; they tend to with human rights obligations amounts to a breach by the offending state of its focus exclusively on civil and political rights

and undertakings to other states. Moreover, the performance to the exclusion of economic and UN Charter (articles 55 & 56, see Box 1 on social rights; and they tend to be part of an page 19) requires of its member states that ideological package that insists on economic they take joint and separate action to ensure and other reforms which go beyond (or may observance of human rights. The international contradict) the dictates of human rights. Such community therefore has a legal commitment measures have a mixed record of success in to the protection of human rights where they forcing reform, and have notoriously failed HUMAN RIGHTS

16 The Former Yug Former The intervention inIraqiKurdistan, Somaliaand The recentexamples ofinternational same category. against humanitycanbearguedtofallinthe other grossabusesofhumanrightsorcrimes [see Box 4onpage community undertheGenocideConvention but isineffectrequiredoftheinternational genocide, forexample,isnotonlylegitimate exceptions exist:interventiontoprevent sovereignty, thoughfew woulddisagree that presumption againstviolationofstate Box 1onpage19].Thereisageneral Charter, given theprovisionsof 2[see Article human rightscanbelegitimateunderthe providing humanitarianrelieforprotecting armed interventionforthepurposesof peace andsecurity. debated Itismuch whether measures istheremovalofathreattoworld purpose oftheUN,rationaleforsuch Charter; butinkeepingwiththeprimary intervention,underCha armed imposition ofsanctions,andultimatelyeven The UNSecurityCouncilmayorderthe sovereignty. committed behindtheveilofnational the internationalcommunitytoabuses activities ofNGOsareoftencrucialinalerting capacity.in The monitoring andadvocacy be slow, anditsmonitoring functionslimited criticism. Alas, theUN’s mechanismstendto States willgotogreatlengthsforestallsuch (opposition partiesseisesuchopportunities). domestic aswelltheinternationallevel and mayhavepoliticalrepercussionsatthe embarrassment tothegovernmentconcerned, rights bodiesisatleastasevere critical reportfromoneoftheUNhuman thanisgenerally recognised.A deterrent of diplomaticprivileges,isprobablyagreater The threatofpublicdenunciation,ordenial human rights. an insecurefoundationfortheenforcementof driving forceofinternationalrelations,butis national (strategic)interestremainsthe by theindustrialisedstates.Thepursuitof in anycase,applied as amethodofdislodgingdictators.Theyare, oslavia donotprovide a ad hoc 22]. Action toprevent and inconsistently pter VII ofthe EmergencyAssistance toRwanda (JEEAR) happening, astheJoint Evaluationof responsibility forthefailure topreventit international community mustacceptits as wellbeingacrimeagainst humanity. The people, wasacatastrophicfailureofprotection by agovernmentagainstsectionofitsown The genocideinRwanda1994,orchestrated this may involve theinternational community. mayneedtobeinvoked.parties Ultimately abusing power, thentheresponsibility ofother the necessaryprotection,orisitself responsibility isunableorunwillingtoprovide competent parties.Ifthepartywithprimary various levels–andforidentifyingthe rights –whichaswehaveseenmaylieat responsibility fortheprotectionofhuman threats. Thisdependsbothonclearlylocating their obligationtoprotectagainstthose ensure thattheresponsibleauthoritiesfulfil threats tohumanrightsandthenseeking human rightsagenciesconsistinidentifying The protectionactivitiesofhumanitarianand little deterrenteffect. date) hamperedthosetribunals,andcouldhave would sufferthesameweaknessesashave(to the politicalwilltoenforceitsjudgmentsit way toremedyingthesituation:butwithout Yugformer of therecentspecialtribunalsforRwandaand international criminalcourt,alongthelines provide. Currentproposalsforastanding which theinternationalcommunitycan above maybetheonlyformofprotection mechanisms andmeasuresasthoseoutlined mechanism, thecombinationofsuchdisparate In theabsenceofaglobalenforcement tended tomask. are issueswhichthefocusonreliefhave conflict, indeedthecessationofconflictitself, to thecivilianpopulationfromeffectsof the humanitarianpicture.Theprotectiongiven circumstances, whileessential,isonlypartof character.The delivery insuch ofrelief interventions asessentially‘humanitarian’in cases callintoquestionthedescriptionofsuch sanctioned interventionforcesinthelasttwo particular, themandate andpracticeoftheUN- humanitarian interventionbyforce.In convincing aprecedent basisfor of oslavia, would ifadoptedgosome

17 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ pointed out. It is one thing to plead inability human rights standards. This has a bearing to respond; it is quite another to deny on the conduct of rebel movements aspiring responsibility. to a share in government, for example, as well as on the conduct of governments and their Governments here stand as representative of agents. the state, and bear the relevant responsibilities. But the bodies which in practice are the Where state structures are themselves protecting (and potentially abusing) powers breaking down, and in the case of ‘weak’ states include ministries, local government, courts, lacking any effective centre of sovereign law enforcement agencies, armed forces, and authority, the issue of human rights observance the individuals who staff them. Decisions are is particularly relevant and particularly made by individuals, and it is with individuals intractable. It is certainly not always true that that negotiation takes place. Of course, an desire for respectability is a motivating factor, individual may fear no sanction for an abuse especially where the chain of command is of human rights, or for failure to prevent such weakened to the point of virtual anarchy. abuse. But one of the assumptions on which Recent attempts in South Sudan (described in advocacy is pursued is that the individual the forthcoming Network Paper 21 by Iain recognises and understands the duties that go Levine, Humanitarian Principles: the South with his or her office. If the advocates Sudan experience) to secure respect by all themselves lack that understanding, the parties for the provisions of international chances of success are reduced. Knowledge humanitarian law and the Convention on the of the basic provisions of human rights, Rights of the Child provide a potentially humanitarian law and refugee law, is an important precedent. The adoption of ‘joint essential part of that understanding. operating principles’ by INGOs operating in Liberia – which include as a central concern What about abuse by non-government agents? the promotion of respect for humanitarian and Though humanitarian law imposes duties on human rights principles – is an example of a such parties, human rights law does not. The similar initiative. It remains to be seen moral case against abuse remains unchanged, whether initiatives of this sort will be an of course. But more than that, international effective force for the protection of civilians. human rights law sets standards for which The ICRC has long experience in such universal respect should be promoted, and the circumstances, with results that are hard to observance of which has a bearing on claims assess. We shall discuss in the next section to legitimacy. The desire for legitimacy (or how such efforts relate to the realities of armed at least respectability) will often be the conflict. primary motivation behind compliance with International Legal Standards and

18 HUMAN RIGHTS

18 Organisation forOrganisation theachievement ofthepurposes setforth in 55.”Article “All Memberspledgethemselvesto takejointandseparatewith the actionincooperation Article 56 sex, orreligion.”freedoms forallwithoutdistinctionastorace, language and(c)universalco-operation; respectfor, andobservance of, human rights andfundamental economic, social,health,andrelatedproblems; and internationalculturaleducational conditions ofeconomicandsocialprogressdevelopment; (b)solutionsofinternational “... theUnitedNationsshallpromote:(a)higher standardsofliving,fullemployment,and Article 55 NothingcontainedinthepresentCharter shallauthorisetheUnitedNationstointervene 7. AllMembersshallrefrainintheir internationalrelationsfromthethreatoruseof 4. TheOrganisationisbasedonthe principleofthesovereignequalityitsmembers; 1. in accordancewithfollowingPrinciples: 1, ofthePurposesstatedin OrganisationanditsMembers, shallact Article inpursuit “The Article 2 To beacentreforharmonisingtheactionsofnations intheattainmentofthesecommon 4. To achieve cooperation international problems insolvinginternational ofaneconomic, 3. To develop relationsamongnationsbasedonrespect friendly fortheprincipleofequal 2. To peace andsecurity; maintaininternational 1. “The PurposesoftheUnitedNationsare: Article 1 our efforts toaccomplishtheseaims.” social progressandbetterstandardsoflifeinlargerfreedom...haveresolvedtocombine from treatiesandothersourcesofinternationallawcanbemaintained,topromote small, andtoestablishconditionsunderwhichjusticerespectfortheobligationsarising worth ofthehumanperson,inequalrightsmenandwomennationslarge the scourgeofwar...toreaffirmfaithinfundamentalhumanrights,dignityand “We thepeoplesofUnitedNationsdetermined ...tosave from succeedinggenerations From thePreamble: BOX 1 VII.” this principleshallnotprejudicetheapplicationof enforcementmeasuresunderChapter require MemberstosubmitsuchmatterssettlementunderthepresentCharter;but in matterswhichareessentiallywithinthedomesticjurisdictionofanyStateorshall other mannerinconsistentwiththePurposesofUnitedNations; force againsttheterritorialintegrityorpoliticalindependenceofanyState,in ends.” sex, language,orreligion;and for humanrightsandfundamentalfreedomsallwithoutdistinctionastorace, social, cultural, orhumanitariancharacter, andinpromotingencouraging respect rights andself-determinationofpeoples; (underChapterIX:InternationalEconomicand SocialCooperation) United NationsCharter:selectedprovisions

19 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○

BOX 2 Rights & freedoms in the Covenant on Civil and Political Rights 1966 (in abbreviated form)

Rights: (to live or be treated in a certain way; recognition of status) to life (Article 6) to liberty and security of person (9) to humane treatment as a prisoner (10) to a fair trial etc. (14) to privacy etc. (17) to protection as a child (24) to be given a vote and take part in public affairs (25) to equal treatment, protection and recognition before the law including presumption of innocence and right of appeal (14, 16 & 26)

Freedoms of... or to... (active freedoms - rights of non-interference) of movement / choice of residence (12) of thought, conscience and religion (18) of opinion and of expression (19) of peaceful assembly (21) of association (22) to marry freely and found a family (23) (of individuals belonging to minorities) to practice own culture, religion and language, in community with other members of their group (27)

Freedoms from... (rights not to be treated in a certain way - protection from...) from torture or cruel, inhuman or degrading treatment or punishment (7) from slavery, servitude and forced labour (8) from imprisonment for debt etc. (11) from arbitrary expulsion (as an alien) (13) from prosecution under retroactive criminal law (15)

Prohibition of propaganda for war, or advocacy of national, racial or religious hatred that constitute incitement to discrimination, hostility or violence (20)

Notes: 1. These rights are to be ensured to all individuals within the State’s territory and subject to its jurisdiction, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (2) International Legal Standards 2. Derogation from these rights is only permissible in time of public emergency which

and threatens the life of the nation. Any such measures must be officially proclaimed, be non-discriminatory, and be limited ‘to the extent strictly required by the exigencies of the situation’. Certain rights can never be derogated from: the right to life, to freedom of thought, and to recognition as a person before the law; and freedom from torture etc., from slavery, from imprisonment for debt, and from prosecution under retroactive criminal laws. 20 HUMAN RIGHTS

20 .ThereisnorighttoownpropertyintheCovenants,astherehadbeenUniver- 4. ThereisnoprovisionintheEconomicCovenantforderogationfromrightsand 3. N.B. Parties ...recognising“The thefundamentalrightofeveryone Art.State 11(2) 2. Notethat Art. 2(3)allows anexception totheoverriding principle ofnon- 1. Notes Rights recognised(summary) theadoptionoflegislative particularly including measures. recognisedrealisation oftherights inthepresent Covenant by allappropriate means, ofitsavailable resources,to themaximum withaviewtoachieving progressively thefull and throughespeciallyeconomictechnical, internationalassistanceandcooperation, Article 2(1) Article BOX 3 elsewhere, ofa‘righttoland’. sal declarationofHumanRights.Noristhererecognition intheCovenants,or duties thatitrecognises. distribution ofworldfoodsuppliesinrelationto need.” to befreefromhunger[shalltakethemeasures needed] toensureanequitable economy. guaranteed to the extenttowhich discrimination in inthatdevelopingArt. 2(2), countriesaregiven discretionasto (25) (of ‘peoples’)toenjoyandutilisefullyfreelytheirnaturalwealthresources to participateinculturallifeandenjoythebenefitsofscientificprogress(15) to education(13) to thehighestattainablestandardofphysicalandmentalhealth(12) (11) to anadequatestandardoflivingincludingfood,clothingandhousingetc. to protectionofthefamily, particularly mothersandchildren (10) to socialsecurity(9) to jointradeunionsandstrike(8) to fairpayandconditions(7) to work(Article6)

Each State Party tothepresent Covenant undertakessteps, totake individually non-nationals International CovenantonEconomic,Socialand Cultural Rights1966-summaryofrights economic : ,havingdueregardtohumanrightsandtheirnational rightsrecognisedundertheCovenantshouldbe

21 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ BOX 4 Extracts from 1948 Convention on the Prevention and Punishment of the Crime of Genocide

Article I The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.

Article II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Article III The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

Article IV Persons commiting genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible, rulers, public officials or private individuals.

Article V The Contracting Parties undertake to enact ... the necessary legislation to give effect to the provisions of the present Covenant...

Article VI Persons charged with genocide [etc.] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article VII

International Legal Standards Genocide [etc.] shall not be considered as political crimes for the purposes of extradition.

and The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Article VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the 22 prevention and suppression of acts of genocide or any other acts enumerated in Article III. HUMAN RIGHTS

22 which continuetoapply duringthecourseof the applicationofinternational legalstandards highlight someofthefeatures whichrelateto dynamics ofarmedconflict. Thepointisto This isnodoubtasimplistic sketchofthe to bereached. political settlement(involving compromise) equilibrium orstalematewhichallowsa defeat orvictory;whentheyreachan the conflictissettleddecisivelybymilitary Warscompromise. tendtoceaseeitherwhen drive ittendnottobeamenable conflict thattheclaimsandambitions compromise, anditischaracteristicofarmed result. Non-violentsolutionsdemand any othermeans,armedconflictmaybethe existing politicalorlegalmechanisms,by Where theseclaimsarenotarbitratedby resource baserelativetopopulationsize. be linkedtofactorssuchasashrinking combination ofthese.Theymayornot cultural claimsandambitions,ora economic, political,social,orreligious/ I described intermsofcompeting causes ofarmedconflict,theymightbe f itispossibletogeneraliseaboutthe Human rightsin armed conflict 6 so ifthepeaceprocess itself providesforan common nationalgoals. Thisisparticularly it istounitethevarious factions inpursuitof unstable thesubsequent peace, andtheharder parties, themorebitterthat legacyis,themore the atrocitiescommittedbywarring of hostilitiesleavesalegacy;andtheworse amnesty, legal reform. At any rate, the conduct power-sharing arrangements,elections, demobilisation, territorialagreements,interim a peaceprocess:talks,ceasefire, may beleftunresolvedbythetypicalstepsin The competingclaimsthatunderlieaconflict state borders. this processisincreasinglyconfinedwithin states tohostlong-termrefugeesmeansthat population, butthereluctanceofthird-party the separationofdifferentelements of process A national boundarieswhenthefightingstops. living infairlycloseproximitywithinthesame they drawtheirsupportwillhavetogoon to theconflictandpopulationsfromwhich are intra-asopposedtointer-state–theparties conflicts –andthemajorityofnow the conflict.Inmajorityofinternal ‘ethnic cleansing’may involve

23 ○○○○○○○○○

HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ amnesty for the perpetrators: impunity is not of IHL built on this foundation. Today almost a firm foundation for longer-term all states have ratified the 1949 Geneva reconciliation, though reconciliation in the Conventions; rather fewer have ratified the short-term has tended to require compromise Protocols. The development of this ‘Geneva’ on the demands of justice. law was paralleled by the development of laws (‘Hague’ law) restricting the types of weapons Civilians are no longer incidental victims of that might legitimately be used, a process that war. They are often targeted for the political continues today in, for example, agreements support they are perceived to provide to one to control the use of anti-personnel mines and side or the other. One notorious counter- other inhumane weapons. Relief workers will insurgency strategy of the 1980s was described not need to be reminded of the humanitarian as ‘draining the sea from the fish’ – civilians implications of this, and many humanitarian constituting the ‘sea’ which hid guerrilla ‘fish’. agencies have been involved in advocacy aimed at influencing this process. Civilians are rarely neutral bystanders in war, and their allegiance is likely to be courted or The 1949 Conventions and First Protocol apply demanded by all sides. The term ‘civil war’ to international armed conflict only; that is might seem to imply that the erosion of the conflict between states. Since most conflicts distinction between civilian and military is today are internal, this limits their application. justified; that where a society is ‘at war with But the Conventions contain one article itself’, the distinction is meaningless. But this common to all four, known as common Article is a false argument. The vast majority of the 3 [see Box 5 on page 25]. This lays down population, while it may owe strong ethnic or some minimum standards for the treatment other allegiance (often through fear of ‘the of non-combatants during internal armed other’), is not party to the conflict in that it conflict. It constitutes a basic set of protection plays no direct part in it. Civilians have played standards, reflecting general principles of an indirect part in hostilities throughout humanitarian law, which impose duties on all recorded history, but have not on that account parties to the conflict, government or other. been considered legitimate targets of war. If relief workers are familiar with only one part of humanitarian law, it should be this part, The way in which war is conducted, and in since it has universal application. particular the treatment of civilians and non- combatants, is the subject of international Whether a particular situation amounts to humanitarian law (IHL). The four Geneva ‘armed conflict’ may be disputed. The Second Conventions of 1949 and the two Additional Protocol, which is designed to build on Protocols of 1977, based on the principle of common Article 3, applies specifically to non-combatant immunity, set out in some internal armed conflicts, but these are defined detail standards of treatment for those not to include only those conflicts in which taking an active part in hostilities – including dissident forces exercise effective control over sick and wounded combatants and prisoners territory such as to allow them to carry out of war, as well as civilians. These treaties ‘sustained and concerted’ military operations. constitute the modern law, but the history of Internal disturbance and other ‘lower’ levels IHL dates back most famously to 1859 and of conflict are explicitly excluded, and states International Legal Standards the humanitarian initiative of an individual, have notoriously sought to characterise

and Henri Dunant, who persuaded Napoleon III – conflicts in such a way that they fall outside the victor in the battle of Solferino – to allow the provisions of the Second Protocol. The the wounded of all nationalities on the battle provisions of the Second Protocol are highly field to be given assistance under the significant in respect of the protection of protection of an official proclamation. By civilians. They include a prohibition of attack this, a humanitarian gesture was turned into a against civilian populations as such; 24 protected right. The subsequent founding of prohibition of starvation as a method of

HUMAN RIGHTS the Red Cross movement and the development combat, or destruction of objects like crops,

24 non-governmental organisationsinhavingan Conventions themselves; anditisaloneamong mandate isreflectedintheGeneva and guardianofIHL.Itsuniquestatus (ICRC) hasfromtheoutsetbeensponsor The InternationalCommitteeoftheRedCross provision ofrelieftocivilianpopulations. military reasons’.Theyalsoallowforthe of theciviliansconcernedor‘imperative relocation ongroundsotherthanthesecurity population’; andprohibitionofforced indispensable tothesurvivalof‘civilian livestock andwatersourceswhichare (2) The wounded and sick shallbecollectedandcaredfor. wounded The andsick (2) Personstakingnoactivepartinthehostilities,includingmembersofarmedforces (1) minimum, thefollowingprovisions: Party each totheconflictshallbeboundapply,one oftheHighContractingParties, asa In thecaseofarmedconflict,notaninternational character, occurring of intheterritory BOX 5 parties totheconflict. The applicationofthepreceding provisionsshallnotaffectthelegalstatus ofthe special agreements,allor partoftheotherprovisionspresentConvention. The Partiestotheconflictshouldfurtherendeavour tobringintoforce,bymeansof may offeritsservicestothePartiesconflict. An impartialhumanitarianbody, CommitteeoftheRedCross, such astheInternational thepassingof sentencesandthecarryingoutofexecutionswithoutprevious dignity, outrages uponpersonal inparticularhumiliatinganddegrading(d) treatment; takingofhostages; (c) (b) violencetolifeandperson,inparticularmurderofallkinds,mutilation,cruel (a) place To thisend, thefollowingactsareandshallremain prohibitedatanytimeand inany or anyothersimilarcriteria. any distinctionfoundedonrace,colour, adverse religion, sex, orwealth, orfaith, birth detention, orany shallinallcircumstances othercause, betreated humanely, without who havelaiddowntheirarmsandthoseplaced guarantees whicharerecognisedasindispensable bycivilisedpeoples. judgment pronouncedbyaregularlyconstituted court,affordingallthejudicial treatment andtorture; whatsoever withrespecttotheabovementionedpersons: Article 3,commontothefourArticle Geneva Conventions of1949 dispute; andspecifically, notespousingthe Neutrality involves nottakingsidesina others maybeunabletoaccess. assistance roleinrespectofwarvictimsthat factions, andtoperformaprotection able toactasaneutralintermediarybetween and othersrecognisethis,theICRCisoften impartiality andindependence.Becausestates toprinciplesadherence ofneutrality, the preservationofitsstatusdependsonstrict inter-governmental organisation.Inpractice, ways itenjoysthestatusandprivilegesofan explicit law. mandateininternational Inmany hors decombat bysickness,wounds,

25 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ cause of one side or another in an armed makes public condemnations. It is sometimes conflict. In theory, consistent application of said that a commitment to justice demands human rights standards to the actions of all such condemnation. Whether or not that is sides to a conflict is not inconsistent with so, the ICRC believes that its humanitarian neutrality. In practice, of course, it is likely mandate precludes such a role. That mandate, to prejudice the ability of a humanitarian however, has protection as a central element. agency to deliver relief. For the ICRC, the It is the means that ICRC adopts to pursue principle of neutrality is rooted in pragmatism. that aim that distinguish its work from that of As it is stated in the Fundamental Principles agencies specialising in public advocacy on of the Red Cross Movement: ‘In order to enjoy human rights. There is no fundamental clash the confidence of all, the Red Cross may not of agendas here. take sides in hostilities or engage at any time in controversies of a political, racial, religious Whether or not other agencies follow the or ideological nature’ (emphasis added). strictures of operational neutrality, the principle of impartiality is one that is The practice of operational neutrality makes fundamental to humanitarianism – and mirrors demands that few organisations aspire to the general human rights principle of non- meeting. For example, the ICRC will discrimination. It involves a commitment to wherever possible work on all sides of a providing relief from suffering on the basis conflict, establishing separate delegations to of need alone, giving priority to those in negotiate with the warring factions while greater need, without any distinction on insisting that this implies no formal grounds of race, political belief etc.. It is recognition of the parties concerned. The doubtful whether agencies apply this principle practice depends on a policy of ‘discretion’; consistently in practice, but a commitment to and it is here that the practice of the ICRC it is an essential safeguard to the whole diverges most obviously from that of many concept of humanitarianism. Practical issues other humanitarian actors. While it can and such as that of restricted access to the people does make representations on human rights affected should not be allowed to obscure this abuses to the controlling authorities, it rarely basic principle. International Legal Standards and

26 HUMAN RIGHTS

26 defines thereasonsfordisplacement: themost of arefugeeismorespecific thanthat,and a nationalboundary. Buttheformal definition displaced, thatissomeone whohasfledacross A ‘refugee’issomeone whoisexternally ‘Refugees’ the bordersoftheirown country. are internallydisplacediftheyremainwithin disaster.fleeing theeffectsofnatural should probablyinclude‘distress’migrants home. Thiswillnotincludeallmigrantsbut have beeninsomesenseforcedtoleavetheir People aresaidtobe‘displaced’whenthey ‘Displaced’ concerns. First,somedefinitions. how theserelatetotraditionalhumanitarian human rightsaspectsofdisplacementandask conflict. Inthissectionweshalllookatthe communities fleeingtheeffectsofarmed is thatofhumandisplacement,usuallywith The commonestcontextforreliefactivities Human rightsanddisplacement refugees andinternal Human rights, displacement 2 They 7 on page20]thiscomprises threeelements: Political Rights1966(Article12), seeBox2 Freedoms intheCovenant onCiviland As definedininternational law[Rights& human righthereisfreedomofmovement. and ingeneral humanrights law. coreThe The relevantrightsarefoundinrefugeelaw to enjoynationalprotection. those displacedinternally,who arepresumed of arefugee.Nosuchdefinitionexistsfor protection, whichisthemaincharacteristic protection, andtheneedforinternational is thisnon-availabilityofeffectivenational threat inquestionthecountryoforigin.It must beunabletosecureprotectionfromthe the furtherconditionthatpersonconcerned What thelegaldefinitionshaveincommonis public order’,forexamplearmedconflict. those fleeing‘eventsseriouslydisturbing Convention) thedefinition toembrace broaden founddefinitions intheOAU (e.g. African founded fearofpersecution’.Other who isexternallydisplacedthrougha‘well- on theStatusofRefugees,referstosomeone common definition, inthe1951Convention

27 ○○○○○○○○○

HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ (i) freedom of movement within a country were anything but safe, the UN intervention in which one is lawfully resident force evidently lacking the necessary (ii) freedom to leave any country protection mandate or the political resolve to (iii) the right to return to one’s own country fulfil such a mandate.

The first two apply to nationals and non- The role of the ICRC in bringing relief to such nationals alike; the third only to nationals of populations, and in attempting to secure their the country in question. They are subject to protection, is an important and well- legal restrictions, but these must not be established one. UNHCR has in several recent arbitrary or discriminatory. In particular, they cases extended its assistance (if not its are subject to suspension during a state of protection) activities to cover internally emergency under the derogation powers displaced populations. But IDPs may suffer described earlier. In the absence of such greater problems than refugees with few of exceptional measures, which are valid only if the equivalent protections. The issue of IDP they meet strict conditions, the rights protection has been the subject of much debate described above may be assumed to apply. in recent years, and the appointment by the UN Secretary General of a Representative (Mr What is the significance of these rights in the Francis Deng) to examine and report on the context of displacement? First, they outlaw situation of IDPs – estimated to be some 25 forced displacement of people other than on million people worldwide – has highlighted exceptional grounds (humanitarian law the issue without so far resulting in any new imposes similar restrictions) but give people agreement on institutional mandates. It is freedom to move to safer areas if threatened. debated whether existing legal provisions are Second, they allow people to leave a country sufficient, and responsibilities adequately to seek safety beyond its borders – though defined; but in any case, the political and there is not a corresponding right to enter any practical obstacles to the consistent country, even in search of asylum (see below). application of the relevant standards are Third, the right to return implies a right for formidable. Establishing respect for the refugees to repatriate when they wish to. humanitarian law principle of non-combatant immunity (see next section) is perhaps the key Internally displaced people issue here.

There is no specific provision or mechanism Refugees, refugee law and UNHCR for the protection of internally displaced people (IDPs). In theory, they are protected There is no universal ‘right of asylum’ – that under general human rights provisions, is, there is no legal obligation on states to grant including those mentioned above, to the extent protection to refugees, despite the wording of they have not been legitimately derogated the Universal Declaration on Human Rights from; and where relevant, by the provisions (UDHR). States have in practice tended to of international humanitarian law. In theory, accept at least a moral obligation to give too, they continue to enjoy the protection of asylum to those who meet the definition of those rights by their own government. In ‘refugee’ in the 1951 Refugee Convention. practice, of course, they may get no such However, what constitutes asylum is not International Legal Standards protection. Yet the extension of international defined in that or any other text, though at a

and protection to people within their own borders, minimum it must include at least temporary even given the willingness to provide it, runs protection against the threat from which the up against sovereignty and is fraught with refugee fled. However, the 1951 Convention difficulty. Such populations, perceived as contains a vital safeguard in the principle of partisan, are often treated by belligerents as non-refoulement, ie. having crossed a national legitimate targets of war. The experiment with boundary, a refugee shall not be expelled or 28 ‘safe areas’ in The Former Yugoslavia had returned to the frontiers of territories ‘where

HUMAN RIGHTS mixed results, to say the least: in practice they his life or freedom would be threatened on

28 disagree with theimportanceofaddressing the is laudableinitself– it wouldbehardto the focusonrootcausesof refugeemovement, The concernwiththe‘right toremain’,and There isanothertrendthat isofmoreconcern. humanitarian imperativeofassistingthem. protection needsofasylumseekers,andthe has themeritofrecognisingimmediate The practiceoftemporaryprotectionatleast group ofindividuals. the longer-termprotectionneedsofadiverse it failstodoismakeanydistinctionas protectionintheshort-term.Whatrequiring faced withmassimmigrationandofrefugees reconciling thedivergentinterestsofastate repatriation. Ithastheadvantageof any longer-termsolutionotherthan respect ofrefugeeprotection.Italsorulesout carries withitdangersandlimitationsin allowing speedandflexibilityofresponse,it this devicehasbeenwelcomedbyUNHCRas refoulement’ requir as itpossibletodoso,subjectthe‘non- idea thatrefugeeswillbesenthomeassoon protection isnowexplicitlypremisedonthe full refugeestatus.Thislesserformof on thebasisofgroupdeterminationratherthan the grantingof‘temporaryprotectedstatus’ those from For The Vietnameser example with the dealing withmassexodusofrefugees,for An increasingtrendinrecentyearswhen as citizensofthehoststate. be treatedasfarpossibleinthesameway broadly ontheprinciplethatrefugeesshould relating tostatusandentitlements,based and La Convention andregional agreementsin Africa basis of‘group’determination,the1951 of individualstatusdeterminationoronthe Once admittedasarefugee,whetherresult made. expelled beforesuchdeterminationhasbeen it followsthatanasylumseekercannotbe determining theexistenceofjustsuchthreats, status involvesassessment ofrefugee political opinion’(art.33).Sincethe membership ofaparticularsocialgroupor nationality, religion, account ofhisrace, tin America lay down certain rights ement. W ement. mer Yug oslavia, hasbeen hile theuseof efugees and the roleof UNHCR incoordinating relief Relief NGOstendtobe morefamiliarwith guarantees inthecountry oforigin. highlights thequestion ofprotection looked tobyhostanddonorstates;it nationality’. Thisclauseisincreasinglybeing the protectionofcountryhis exist, continuetorefuseavailhimselfof been recognisedasarefugeehaveceasedto circumstances inconnectionwithwhichhehas refugee whens/he‘cannolonger, becausethe 1951 Convention, ceasestobe a aperson Under the‘ceasedcircumstances’clauseof protection ofthenon-refoulementprovision. the a dangertothecommunity, cannotclaim of aparticularlyseriouscrimeandconstitutes the hostcountry, orwhohasbeenconvicted to constituteathreatnationalsecurityin someone whomayreasonablybeconsidered or seriousnon-politicalcrimes.Inaddition, guilty ofwar crimesagainsthumanity, crimes, Roughly, apersonisdisqualified ifthey are refugee. status; andwhendoesarefugee disqualifies apersonfromclaimingrefugee These relatetothequestionsofwhat placed arethe on whichgreaterstresshasrecentlybeen Two otherelementsofthe1951Convention protection. for theapparenterosionofinternational unjust tomakethemthesoletargetofcriticism cases wearingthin.Certainlyitwouldbe not surprisingthattheirpatienceisinmany international opinionrequiresofthem.Itis assistance incarryingoutwhatthelawand burden oflargerefugeeflowsreceivelittle the Souththat,willinglyornot,dobear up’ theprobleminSouth.Thosestates asylum seekersconstituteanattemptto‘bottle increasingly adoptedtorestricttheflowof measures thatindustrialisedstateshave borders ofpotentialcountriesasylum.The stop asylum-seekersevergettingnearthe accompanied byanincreasingtendencyto national protectionisavailable.Butit movement, andensuringthateffective human rightsissuesthatunderlierefugee exception and cessation cease clauses. tobea

29 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ assistance to refugees than they are with the this case, against the threat posed to refugees agency’s primary role and mandate: that of within camps by those military and political refugee protection. Under its Statute, the elements that orchestrated the genocide in agency’s mandate contains two main Rwanda – represents a seriously inadequate elements: providing international protection response. It has even been suggested that, on the one hand, and seeking permanent given its apparent inability in that situation to solutions to the ‘problem of refugees’ on the fulfil its mandate of providing international other. Its role in coordinating welfare protection, UNHCR ought to have withdrawn, assistance efforts is very much subsidiary in leaving others to fulfil their primary function the Statute, yet has developed to the point of providing relief assistance.4 UNHCR itself where it often seems to obscure its recognises this problem and is taking steps to fundamental (and unique) protection function. strengthen its protection capacity in That function is increasingly under threat. humanitarian emergencies. Whether the Since the assistance role is largely carried out political actors with corresponding through ‘contractor’ NGOs, with UNHCR responsibility for protection are committed to acting as a conduit for donor funds, it is an fulfiling that responsibility remains doubtful. issue in which NGOs are inextricably caught up. In the rest of this section we shall be Where the imperatives of providing relief concerned with the two primary mandated assistance obscure the protection issues – and functions, and the apparent shift in UNHCR’s this is by no means an issue for UNHCR alone interpretation of its own mandate. – then any humanitarian agency with a commitment to human rights is bound to look We have said that it is the search for protection beyond the immediate task of providing relief. not available in the country of origin which Though the humanitarian imperative may characterises a refugee. UNHCR’s role in dictate a particular agency’s course of action, securing international protection has much to it should never be party to a denial of the do with securing recognition of refugee status protection issues – the solution to which will and the rights that follow from that (legal) generally lie with political actors. Where status under the 1951 Refugee Convention. So relief is delivered in the context of on-going while ‘protection’ includes the more obvious armed conflict, there will be a close link meaning of protection from attack or between protection issues and the factors persecution, it has a broader meaning; and it perpetuating the conflict. The relationship extends to the protection of refugees’ vital between protection and assistance is explored interests, those interests that human rights are further in the next section. designed to protect. A refugee or any other non-national has the same human rights claims This relates to the second core element of on the host state as a national (and equivalent UNHCR’s mandate: the search for solutions. duties).3 It is striking that the Executive Committee ‘statements’ have tended to reposition it as a The protection role of UNHCR relates most general humanitarian actor. So too have its crucially to the principle of non-refoulement. more public pronouncements. This, for It is here that the protection of refugees is example, from UNHCR’s State of the World’s perhaps under greatest threat. The apparent Refugees 1995 (p.43): International Legal Standards acquiescence in involuntary repatriation of

and Rwandan and Burundian refugees – whether “UNHCR has been obliged to develop new or not this amounted to refoulement – marks areas of competence and to undertake a a retreat (under duress) from an important number of non-traditional activities. These working principle. But protection in the include, for example, providing protection and country of asylum has itself been neglected. assistance to besieged and war-affected Recent events in eastern Zaire and Tanzania populations; monitoring the protection needs 30 have illustrated how the focus on relief of returnees and internally displaced people

HUMAN RIGHTS assistance to the exclusion of protection – in in their own country; establishing community

30 problem, andsoon.Thetypeofsolutionthat oforigin’scountry problem,thedonors’ thehostgovernment’sproblems, the problem, interlocking problems:therefugees’own problem’ inagivencontext,butnumberof to whoseproblem?”Thereisnotone‘refugee “solutions We solutions. mightask durable A finalwordonthesearchforpermanentor only beweakenedasaresult. raison d’etre countries, isindangeroflosingsightits concern withkeepingpeoplewithintheirown embracing anagendathatmirrorsdonors’ diversification isveryworrying.UNHCR,in seems tohaveaccompaniedthis focus onthecoreactivityofprotectionthat are allimportantareasofconcern,theloss development aswell asrelief.While these internally displacedaswellrefugees, embrace rootcausesaswellsolutions, own view, itsmandate has developed to intheagency’sIt isapparent fromthisthat, right toleaveacountryandseekasylum. clearly hasthepotentialforconflictwith place isatthecentreofthisapproach,which The preventionofrefugeeflowsinthefirst regard torefugeeflowsfromtheirborders. the responsibilitiesofcountriesoriginwith remain aswelltherighttoreturn,andon accompanied byanewfocusontherightto homeland-oriented’. Thishasbeen more holisticapproachwhichis‘proactiveand was ‘reactiveandexile-oriented’,towardsa away fromarefugee-centricapproachwhich This shiftisdescribedasa‘newparadigm’: a more broadly-based humanitarianagency.” transformed from arefugeeorganisation into seekers. Asaresult... UNHCRhasbeen migration opportunitiestoprospective asylum areas; andproviding accurate information on based rehabilitation programmes inreturnee . institutionofasylumcan The way toachievethis. exclusively onthedeliveryofreliefisnot efforts tofulfilthatmandate.Concentrating its (limited)mandateandsupportsitin response issurelyonethatkeepsUNHCRto has recentlybecomeintense–butthebest happy –pressurefromdonorsandhoststates job andkeeptheirvariousconstituencies which UNHCRstafffaceinseekingtodotheir are. Onemaysympathisewiththedilemmas explored. Itisitsfunctiontoensurethatthey eroded; andthatalternativesolutionsarenot that fundamentalprotectionprinciplesare weighed inthebalanceofcompetinginterests; that theinterestsofrefugeesaresimplynot of protectingrefugees,UNHCRrunstherisk By losingsightoftheprimacyitsfunction essentially politicalratherthanhumanitarian. motivation ofthestateactorsconcernedis are highlypoliticallycharged,andthe clearly thecontextsinwhichitisoperating be of‘anentirelynon-politicalcharacter’;yet UNHCR’s own statute requiresthatitswork instability anddisplacementinitswake. holds thepotentialforcreatingfurther Premature repatriation,ontheotherhand, of moregenuinelydurablesolutions. problem ofrefugeescouldleadtothepursuit imaginative andfar-sightedapproachtothe and mustbedefended. Equally, amore repatriation setabottomlineofprotection, refoulement andthepracticeofvoluntary refugees themselves.Theprincipleofnon- may yetruncountertotheinterestsof a coincidenceofinterestsamongstateparties potentially conflictinginterestshere,andthat not. Ithastoberecognisedthatthereare answer toeverybody’s problem, equallyitmay the earliestpossibleopportunitymaybe solution mustfulfil.Forwhilerepatriationat minimum protectionrequirementsthatany to thesevariousconcerns,buttherearecertain is pursuedmaydependontheweightinggiven

31 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○ 8 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Protection and assistance

arlier sections have sought to sketch out flooding, armed conflict); the key aspects of the legal framework (ii) relief action to reduce the immediate Ewhich applies to conflict-affected, threat by providing for those needs that displaced and other populations in the affected communities cannot meet humanitarian crisis; and to describe how by themselves; different agencies’ mandates apply to the (iii) action to enhance coping capacities, to enforcement of the legal and moral principles hasten people’s recovery and return to involved. In recent years there has been a self-sufficiency. growing awareness of the need to reconcile the apparently disparate demands of human These, of course, are not mutually exclusive rights monitoring and advocacy on the one categories. The point is to suggest ways in hand, and operational relief programmes on which protection and assistance activities are the other. This section explores the connected, and how both relate to human rights relationship between protection and assistance claims. Earlier, we took protection activities activities, and the degree to which they to be those aimed at ensuring that the complement or conflict with each other. appropriate authorities fulfil their responsibilities in preventing denial or abuse What constitutes a humanitarian crisis? of people’s human rights. This is partly a

International Legal Standards Opinions will vary, but as a working definition matter of securing recognition of protected let us say that a humanitarian crisis is any status. There is clearly a large degree of

and situation involving an exceptional and overlap with assistance activities, for example widespread threat to life, health or subsistence in advocacy aimed at lifting a siege on a that exceeds the coping capacity of individuals beleaguered civilian population. and the community. This suggests a number of possible forms of intervention: We saw earlier that in the context of conflict, IHL has gone a long way to defining (i) action to prevent, remove or mitigate the humanitarian rights, which supplement the

HUMAN RIGHTS factors which caused the crisis (e.g. core human rights. These are concerned for

32 guard, orlocalcommander.guard, this Again, mightinvolveand that talkingtoaprison at themostlocallevel in thefirstinstance; Protection activitiesare therefore bestaimed is almostcertaintobefound locally, ifatall. Effective protectionagainstimminentthreats rights. commitment totheobservanceofhuman respect; andallhaveatleastamoral detail thedutiesofcombatantsinthis provisions ofhumanitarianlawsetoutinsome immunities thatareattachedtoit.The involves recognising civilian andthe status effective protection.This,wehaveseen, warring partiesthemselvescanprovide efforts tohelpandshieldeachother, the only conflict, itislikelythat beyond people’s own provide protectiondoso.Duringarmed is toensurethatthoseresponsibleandable provide otherformsofprotection;theirtask nor ICRCcanphysicallyprotectpeople, protection whereitbelongs.NeitherUNHCR It isimportanttolocateresponsibilityfor threat tohumanrights. is aprotectionissue,sincetheyconstitute given situation.Theremovalofthosefactors be theparamounthumanitarianconcerninany constraining people’s freedom ofactionmay closest. Theneedtoremovethefactors between protectionandassistanceneedsis made. Itishere,perhaps,thattheconnection curtailed, thatassumptioncannolongerbe action, andrangeofoptions,isseverely people’sBut inasituationwhere freedomof leave themperpetually vulnerable todisaster. and community–thoughchronicpovertymay cope withinthesupportstructuresoffamily Most people,leftinpeaceandfreedom,will needs wheretheycannotdosothemselves. political) thantomeetpeople’s immediate threats tosecurity(physical,economic,social, seen, isdesignedmoretoprotectagainst the rightsregimetakenaswhole,wehave actually establishedasanabsoluteright.But assistance isalsoprotectedinIHL,ifnot in thatsensemostly‘protection’rights.Relief from theworsteffectsofconflict.Theyare they aredesignedtoshieldnon-combatants the mostpartwithcategory(i)above,inthat of itsownobjectives, andanassessment of will presumablybebased onaninterpretation depends onforcontinued access.Itsdecision obviously riskslosing theconsentthatit the responsibleauthority orotherstoact, that takesapublicstandinanattempttoget concerned totheauthor rights abuse–donotalwaysendeartheagency involve exposing actualorpotentialhuman Finally, protection activities –which tendto of thoseitwastheretoprotect. itself apparentlyimpotenttostopamassacre specificprotection mandate(UNAMIR) was 1996). There,aninternationalforcewitha as arecentdisastrousexample(seeCohen, examples. KibehoinRwandacomestomind be drawnfromthis,andtherearemanycounter But itisdoubtfulwhethergeneralisationsmay assistance havebeenmutuallyreinforcing. Lanka areanexampleofwhereprotectionand attacks –andtheopenreliefcentres’inSri agencies mayhaveactedasadisincentiveto In somecases,thepresenceofinternational the protectionofrecipientsisdebatable. The positivepotentialofreliefassistancefor not otherwisehavehappened. allowed thatpracticetooccurwhereitmight forcibly relocatedpopulationshasarguably willingness ofaidagenciestosupplyrelief order toattr deliberately manoeuvredbyarmedfactionsin carrying. Inotherinstances,peoplehavebeen were attackedforthefoodthatthey As peopleleftthedistributionpoints,they distributed tofeedmalnourishedpopulations. Liberia: valuabledryfoodrationswere To (negative) arecent take example from protection implications,positiveornegative. The provisionofreliefmayitselfhave This includesallreliefagencies. being usedandrecognisedbyallconcerned. the validityofcurrencydependsonits and soon,arealldisseminationactivities.But advice centrestoinformpeopleoftheirrights, variety ofagencies.Humanrightstraining, respect ofhumanrightsiscarriedoutbya ‘dissemination’ ofIHL.Similarworkin Much ofICRC’swork isconcernedwiththe depends onanawarenessofresponsibilities. act aidsupplies. ities. A ities. A r elief agency And the

33 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ how it can best benefit the population then fulfilment of that right may require a concerned. In practice, it tends also to be based decision to stay. Agencies specialising in on an assessment of whether it is actually able human rights advocacy may be left to expose to be effective as a relief agency in the the abuse in question, perhaps supplied with circumstances; and what impact could be information by the relief agency. But if the achieved by withdrawal and denunciation. The provision of relief is itself contributing to the very factors which constitute a threat to human ongoing threat to people? People have a right rights may limit the agency’s capacity to act to, and need for, protection. Agencies are effectively. rightly taking this issue increasingly seriously. An assessment of relative benefit and risk is For most relief agencies this question of hard to make, but that difficulty has too often effectiveness is likely to be the deciding led agencies to duck the issue. question. If people have a right to assistance, International Legal Standards and

34 HUMAN RIGHTS

34 T and therightsthatgowith it–asacivilian, recognition ofsocial,legal andpoliticalstatus subsistence rightsmay be dependentonthe in anearliersection,the fulfilmentofthese one endofthisspectrum; butaswasargued fulfilment ofphysicalandeconomicneedsat Assistance activitiesareconcernedwiththe socialandpolitical security.economic, spectrum ofrightswhichguaranteephysical, Protection activitiesrelatetothewhole assistance necessaryinthefirstplace. protection issueswhichoftenmakesuch conducted withoutananalysisofthe assistance activitieshavetoooftenbeen activity. ofhumanrights a spectrum But the provisionofhumanitarianreliefaspart humanitarian issues.Itislegitimatetosee and effectiveadvocacyatalllevelson corresponding possibilitiesformorefocused humanitarian rights;and(ii)the existing standardswhichrecognise accountable, andholdothersto least twofactors:(i)theneedtobe he needforreliefworkerstoincrease human rightsstandardsarisesfromat their knowledgeandunderstandingof recommendations Conclusion and 9 .Followingonfrom this,itis suggested 2. Anassessmentofneedsshouldalways 1. follow fromtheargumentofthispaper: The followingrecommendationsforaction this respect. They areatpresentanswerabletono-onein protection consequencesoftheirinterventions. to eliminateormitigatethepotentialnegative should probablybelimitedtotheobligation assistance provided.Butthataccountability demonstrate thebeneficialimpactofrelief as theyareincreasinglybeingaskedto the protectionimplicationsoftheirwork,just Relief agenciesshouldbeheldaccountablefor and soon.Thetwocannotbedivorced. asawoman,a refugee, asaworker, asa child, that giventhepotential negative to ensurethatprotection isgiven? authority, canbetaken andwhat steps threatened, whoistheresponsible security. How people’s are rights status aswellphysicalandeconomic needs –includingissuesofcivilandlegal include anassessmentofprotection

35 ○○○○○○○○○

HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ implications for people’s protection of particular to recognise the significance providing relief assistance, agencies of their protection role and of their should work to the following principle: negotiating status. It is suggested that an assessment should always be made insufficient recognition is given to – and of the protection implications of use made of – these existing channels providing relief in a particular form in by those relief agencies concerned a given context; and steps taken to with human rights advocacy. Their minimise the potential negative side- mandates are weakened as a result. effects for the target population posed by such intervention. This may, 6. Complementing the relevant legal ultimately, involve a decision not to provisions are a number of codes of intervene. conduct, declarations, working principles and similar, which seek to 3. The ability to make a general regulate the way in which relief is assessment of protection needs assumes delivered, the conditions attached to the a basic grounding in the relevant legal provision of relief, minimum technical standards (international and national) as standards, and minimum humanitarian well asfamiliarity with the relevant standards that ought to be universally structures and responsibilities. The need applied. Some of these are already quite for appropriate training follows from well established, others are currently this. Training should involve materials being evolved. They deserve to be more which relate to situations that relief widely known and applied by workers will actually face in the field. humanitarian agencies. The following should be mentioned: 4. People need information about their own rights. New ways need to be explored (i) The Red Cross / NGO Code of Conduct by which people can be helped to pursue (ii) The Turku Declaration on Minimum advocacy on their own and others’ Standards (1991) behalf. Leaflets, advice centres, formal (iii) (under development) minimum training, etc. may all be part of this. technical and general standards for relief provision, under the auspices of 5. As well as understanding the basic the Steering Committee for principles of human rights, and the legal Humanitarian Response and standards which reinforce them, relief InterAction. workers should understand the specific (iv) Various context-specific initiatives, of role and formal mandate of agencies like which those in South Sudan and in Lib- UNHCR and the ICRC. Though not eria have been mentioned above, which always described in these terms, their seek to apply some form of human rights mandates are intrinsically concerned conditionality to the provision of relief with the protection of human rights. assistance – or to incorporate minimum This may imply the need to relate rather protection standards – in negotiation differently to these agencies, and in with the controlling authorities. International Legal Standards and

36 HUMAN RIGHTS

36 4 3 2 1 pg 30 pg 30 pg 27 pg 9 InternationalProtection’-seebibliography Goodwin-Gillinpaperentitled‘RefugeeIdentityandtheFadingProspectof guaranteedtonon-nationals. discretionundertheEconomicCovenantastoextentwhichtheseare determiningrefugeestatus. ShorterOxfordEnglishDictionary, 3rdEdition The onlyexceptionrelatestoeconomicrights,where‘developingstates’aregiven The distinction is often hard todraw,The distinctionisoftenhard andisfrequently amatterofcontentionin Endnotes

37 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ Selected bibliography

Beetham, D. ‘What Future for Economic and Social Rights ?’ in Politics and Human Rights (Political Studies Association, 1995)

Brownlie, I. Basic Documents on Human Rights (Oxford, Oxford University Press, 1992)

Cohen, R. ‘Protecting the Internally Displaced’ in World Refugee Survey 1996 (US Committee for Refugees)

Deng, F. M. ‘Internally Displaced Persons: An Interim Report to the United Nations Secretary- General on Protection and Assistance’ – UNDHA and Refugee Policy Group (December 1994)

Eriksson, J. et al. The International Response to Conflict and Genocide: Lessons from the Rwanda Experience (Synthesis Report from Joint Evaluation of Emergency Assistance to Rwanda, March 1996)

Fischer, H. ed., Law in Humanitarian Crises (2 vols. European Commission, 1995)

Gewith, A. Human Rights (Chicago, University of Chicago Press, 1982)

Goodwin-Gill, G. The Refugee in International Law 2nd ed. (Oxford, OUP, 1996)

Goodwin-Gill, G. ‘Refugee Identity and the Fading Prospect of International Protection’ paper for conference on Refugee Rights and Realities at the Human Rights Law Centre, University of Nottingham, 30 November 1996

Green, L.C. The Contemporary Law of Armed Conflict (Manchester, Manchester University Press, 1993)

Harroff-Tavel, M. ‘Action Taken by the ICRC in Situations of Internal Violence’ offprint from International Review of the Red Cross (Geneva, May/June 1993)

Harroff-Tavel, M. ‘Neutrality and impartiality : the importance of these principles for the

International Legal Standards International Red Cross and Red Crescent Movement and the difficulties involved in applying them’ and offprint from International Review of the Red Cross (Geneva, November/December 1989)

Hathaway, J. ‘Can International Refugee Law Be Made Relevant Again ?’ in World Refugee Survey 1996 (US Committee for Refugees)

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38 UNHCR, The 1949GenevaConventionsand1977AdditionalProtocols(ICRC) Workshop onHumanitarianEthics,NordicAfricanInstitute,UppsalaOctober1996 political emergenciesandwar’October1996–backgroundpaperforScandanavianNGO Slim, H.‘Doingtherightthing:reliefagencies,moraldilemmasandresponsibilityin Shue, H. Sieghart, P. Meron, T.ed., ground paperfortheECHOForumonEthicsinHumanitarianAid,Dublin(December1996) Macrae, J.‘Theoriginsofunease:settingthecontextcurrentethicaldebate’–back- Basic Rights The StateoftheWorld’sRefugees The LawfulRightsofMankind Human RightsinInternationalLaw (Princeton,PrincetonUniversityPress,1980) (Oxford,OUP,1986) , 1995 (Oxford,OUPforUNHCR,1995) (Oxford,OUP,1984)

39 ○○○○○○○○○○○ HUMAN RIGHTS and International Legal Standards ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ RRN Background

The Relief and Rehabilitation Network was conceived in 1992 and launched in 1994 as a mechanism for professional information exchange in the expanding field of humanitarian aid. The need for such a mechanism was identified in the course of research undertaken by the Overseas Development Institute (ODI) on the changing role of NGOs in relief and rehabilitation operations, and was developed in consultation with other Networks operated within ODI. Since April 1994, the RRN has produced publications in three different formats, in French and English: Good Practice Reviews, Network Papers and Newsletters. The RRN is now in its second three-year phase (1996-1999), supported by four new donors - DANIDA, ECHO, the Irish Department of Foreign Affairs and ODA. Over the three year phase, the RRN will seek to expand its reach and relevance amongst humanitarian agency personnel and to further promote good practice.

Objective

To improve aid policy and practice as it is applied in complex political emergencies.

Purpose

To contribute to individual and institutional learning by encouraging the exchange and dissemination of information relevant to the professional development of those engaged in the provision of humanitarian assistance.

Activities

To commission, publish and disseminate analysis and reflection on issues of good practice in policy and programming in humanitarian operations, primarily in the form of written publications, in both French and English.

Target audience

Individuals and organisations actively engaged in the provision of humanitarian assistance at national and international, field-based and head office level in the ‘North’ and ‘South’.

The Relief and Rehabilitation Network is supported by:

Ministry of Foreign Affairs DANIDA ECHO

Irish Department of Foreign Affairs ODA