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Refugees and internally displaced persons —

International humanitarian law and the role of
the ICRC

Jean-Philippe Lavoyer

International Review of the Red Cross / Volume 35 / Issue 305 / April 1995, pp 162 -
180
DOI: 10.1017/S0020860400090586, Published online: 23 November 2010

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abstract_S0020860400090586

How to cite this article:

Jean-Philippe Lavoyer (1995). Refugees and internally displaced persons —
International humanitarian law and the role of the ICRC. International Review
of the Red Cross, 35, pp 162-180 doi:10.1017/S0020860400090586

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 Refugees and displaced persons

Refugees and internally displaced persons

International humanitarian law
and the role of the ICRC
by Jean-Philippe Lavoyer

1. Introduction
The main purpose of this brief study is to show the importance of
international humanitarian law, in particular the Geneva Conventions of
1949 and their Additional Protocols of 1977, for internally displaced
persons, i.e. persons displaced within their own country, and to refugees,
i.e. persons who have fled their country. Not only does this body of
international law protect them when they are victims of armed conflict,
but its rules — if scrupulously applied — would make it possible to avoid
the majority of displacements.
In addition, attention will be drawn to the particular role played by
the International Committee of the Red Cross (ICRC) on behalf of refu-
gees and displaced persons, a role which combines legal intervention with
operational action. The mandate of the other components of the Interna-
tional Red Cross and Red Crescent Movement (in short, the Movement)
will also be discussed.1
After a brief review of international humanitarian law, the ICRC's
mandate will be outlined and the problems faced by refugees and dis-
placed persons will be examined from a legal and institutional standpoint.

1
In addition to the ICRC, the Movement consists of 163 National Red Cross or Red
Crescent Societies and the International Federation of Red Cross and Red Crescent
Societies (in short, the Federation).

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 REFUGEES AND DISPLACED PERSONS

Finally, a few comments will be made on current deliberations with regard

to displaced persons.

2. International humanitarian law

International humanitarian law — also known as the law of armed
conflict or law of war — consists of rules to protect people in time of
war who are not, or are no longer, participating in the hostilities, as well
as to limit the methods and means of warfare. It is a 'realistic' law, which
takes into account not only requirements stemming from the principle of
humanity, upon which humanitarian law is based, but also considerations
of military necessity.2
The main instruments of humanitarian law are the four Geneva Con-
ventions of 12 August 1949 and their two Additional Protocols of 8 June
1977. The Geneva Conventions protect the following people: wounded,
sick and shipwrecked members of the armed forces (First and Second
Conventions), prisoners of war (Third Convention), and civilians, particu-
larly when they are in enemy territory and in occupied territories (Fourth
Convention). The Additional Protocols have above all increased the
protection of the civilian population from hostilities, while also limiting
the methods and means of warfare.
Virtually every State is party to the Geneva Conventions of 1949,3
and the tendency towards universal acceptance of the Additional Protocols
has been confirmed.4 Protection under international humanitarian law
covers two areas:
— international armed conflicts: the Geneva Conventions and 1977
Protocol I are applicable;
— non-international armed conflicts: in situations of internal strife,
Article 3 common to the four Geneva Conventions and 1977 Addi-
tional Protocol II are applicable.5

2
We suggest the following works for readers wishing to delve more deeply into this
subject: Hans-Peter Gasser, International Humanitarian Law: An Introduction, in Hans
Hang Humanity for All, Henry Dunant Institute/Haupt, Geneva, 1993, and Frits
Kalshoven, Constraints on the Waging of War, ICRC, 1991.
3
As of 31 March 1995: 185.
4
As of 31 March 1995: 137 States (Protocol I); 127 States (Protocol II).
5
Common Article 3 contains several fundamental principles applicable in every
situation of armed conflict, and is itself a "mini-convention". Protocol II has a higher
threshold of application than that of Article 3 inasmuch as the armed opposition must
exercise "such control over a part of the territory whereby it can carry out sustained and
concerted military operations."

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Particularly noteworthy among the humanitarian law treaties covering

the use of certain weapons is the 1980 United Nations Convention on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons,
one of whose three Protocols restricts the use of mines.
States have a collective responsibility for compliance by other States
and armed opposition movements with the Geneva Conventions and
Protocols.6 They also have the obligation to bring persons accused of
having committed grave breaches thereof before their own courts, and
they may also hand such persons over to another State for trial.7
Although humanitarian law and international humanrightslaw are two
separate branches of public international law, they have a common goal,
namely to protect human beings. Humanitarian law safeguards the most
basic human rights in the extreme situations that take the form of armed
conflict. Thus these two bodies of law, plus refugee law, should be
considered as complementary.
In disturbances and other violent situations not covered by humani-
tarian law, recourse may be had to international human rights law and to
fundamental humanitarian principles, set forth in particular in the Dec-
laration of Minimum Humanitarian Standards adopted at Turku (Finland)
in 1990.8
The provisions of the Geneva Conventions and Additional Protocols
are very specific. The following is a summary of certain especially im-
portant rules of conduct which apply to all armed conflicts:
— people who are not, or are no longer, taking an active part in hostilities,
such as the wounded and sick, prisoners and civilians, must be re-
spected and protected in all circumstances;
— civilians must be treated humanely; in particular, violence to their life
and person is prohibited, as are all kinds of torture and cruel treatment,
the taking of hostages, and the passing of sentences without a fair trial;

6
Article 1 common to the Geneva Conventions: "The High Contracting Parties
undertake to respect and to ensure respect for the present Convention in all circumstances"
(emphasis added). See also Article 89 of Protocol I, whereby States undertake to act in
cooperation with the United Nations in situations of serious violations.
7
This involves the principle of universal jurisdiction. Grave breaches (war crimes)
are defined in each of the four Geneva Conventions (Article 50 of the First Convention;
Article 51 of the Second; Article 130 of the Third; and Article 147 of the Fourth), and
in Protocol I (Articles 85 and 11).
8
Also known as the "Turku Declaration". See International Review of the Red Cross
(IRRC), No. 282, May-June 1991, pp. 328-336.

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 REFUGEES AND DISPLACED PERSONS

— the armed forces must always distinguish between civilians and com-
batants, and between civilian objects and military objectives. It is
prohibited to attack civilians and civilian objects, and all precautions
must be taken to spare the civilian population;
— it is prohibited to attack or destroy objects indispensable to the survival
of the civilian population (e.g. foodstuffs, crops, livestock, drinking
water installations and irrigation works); it is prohibited to use star-
vation as a method of warfare;
— the wounded and sick must be collected and cared for; hospitals,
ambulances, and medical and religious personnel must be respected
and protected; the emblem of the red cross or red crescent, which
symbolizes this protection, must be respected in all circumstances; any
abuse or misuse thereof must be punished;
— parties to a conflict must agree to relief operations of a humanitarian,
impartial and non-discriminatory nature on behalf of the civilian
population; aid agency personnel must be respected and protected.

3. The ICRC's mandate

Founded in 1863, the ICRC has been mandated by the community of
States, under the Geneva Conventions and in recognition of its long-standing
practical experience, "to work for the faithful application of international
humanitarian law".9 To this end, it makes appropriate representations to all
parties to conflict (i.e. government authorities and armed opposition groups)
in order to encourage full respect for this law. It informs them of its obser-
vations, offers suggestions and reminds them whenever necessary of their
obligations. The ICRC exercises this supervisory mandate by seeking to
establish a relationship of trust with belligerents. Although its observations
are kept confidential out of a desire to cooperate and to obtain access to the
people it endeavours to protect and assist, this principle of confidentiality
is not absolute, as evidenced by numerous public denouncements concerning
in particular the conflicts in the former Yugoslavia and Rwanda.10

9
Article 5, para. 2 (c) of the Statutes of the Movement, revised in 1986 by the 25th
International Conference of the Red Cross. It should be noted that the States party to the
Geneva Conventions attend these international conferences as full members of them and
that by participating in the adoption of the Statutes they expressed their desire to allocate
specific tasks to the respective components of the Movement.
10
The ICRC denounces grave violations of humanitarian law when all its represen-
tations fail and it is in the interest of the victims to make such a denouncement. See "Action
by the ICRC in the event of breaches of international humanitarian law", IRRC, No. 221,
March-April 1981, pp. 76-83.

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So that the ICRC can effectively carry out its duties as the guardian
of international humanitarian law, the Geneva Conventions grant it right
of access to prisoners of war (Third Convention) and to civilians protected
by the Fourth Convention." They also grant it a very broad right of
initiative.12 If there is no Protecting Power, the ICRC can moreover act
as a substitute for it.13 The ICRC also has the legal responsibility "to work
for the understanding and dissemination of knowledge of international
humanitarian law applicable in armed conflicts and to prepare any devel-
opment thereof (Article 5(g) of the Statutes of the Movement).
The States have also assigned the ICRC the task of providing protec-
tion and assistance to victims of armed conflicts and internal strife, and
of their direct results.14 Numerous operational activities have been carried
out in this regard, particularly in situations of internal violence (armed
conflict and unrest).15
The Statutes of the Movement specify the other tasks within the
ICRC's mandate, particularly that of upholding and disseminating the
Fundamental Principles of the Movement16 and of ensuring the operation
of the Central Tracing Agency.17
Finally, the ICRC has the statutory right to take any humanitarian
initiative, i.e. to offer its services whenever it considers that its specific
status as a neutral and independent intermediary can help solve problems
of humanitarian concern.18 This right has the character of customary law.

11
Article 126 of the Third Convention and Article 143 of the Fourth Convention,
which stipulate the following conditions for visits: access to all protected people, right
to interview such people without witnesses, no restrictions on the frequency of visits.
12
Article 9 of the First, Second and Third Conventions; Article 10 of the Fourth
Convention; and Article 81 of Protocol I. Regarding non-international armed conflicts, see
Article 3 common to the four Conventions.
13
Article 10 of the First, Second and Third Conventions; Article 11 of the Fourth
Convention; Article 5 of Protocol I. In practice, the ICRC most often acts on the basis
of its right of initiative.
14
Article 5, para. 2(d) of the Statutes of the Movement.
15
For detailed information, see Marion Harroff-Tavel, "Action taken by the Inter-
national Committee of the Red Cross in situations of internal violence", IRRC, No. 294,
May-June 1993, pp. 195-220.
16
The work of the Movement is governed by the following Fundamental Principles:
humanity, impartiality, neutrality, independence, voluntary service, unity and universality.
17
Article 5, para. 2(e) of the Statutes of the Movement. In particular, the Central
Tracing Agency seeks to restore and maintain ties among members of families split up
by conflicts or disturbances, as well as reuniting members of such families.
18
Article 5, para. 3 of the Statutes of the Movement.

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In situations not covered by humanitarian law, for instance distur-

bances, the ICRC bases its activities on the universally recognized hu-
manitarian principles, on the "hard-core" human rights which cannot be
waived in any circumstances, or on other human rights.
The ultimate embodiment of the ICRC's work is to be found in its
role as a neutral and independent intermediary. It serves not only as an
intermediary between States, but also between victims of armed conflict
or internal disturbances and the State or armed opposition movements.
These numerous responsibilities have made the ICRC an organization
with a unique status. Even though it is itself a private non-governmental
organization, the duties and responsibilities assigned to it by international
law give it an extremely international scope of activity; it is therefore
widely recognized as having an international juridical personality. In
1990, the ICRC was moreover granted observer status in the United
Nations General Assembly.19 The ICRC has also concluded headquarters
agreements with many countries in which it operates. These agreements
confer immunities and privileges upon it, thus placing it on the same
footing as an inter-governmental organization.20

4. Refugees
4.1 Protection under international humanitarian law
Whereas refugee law contains a specific definition of refugee,21
humanitarian law is very vague and only rarely employs the term. All the
same, this does not mean that refugees are neglected by humanitarian law,
since they are protected by it when they are in the power of a party to
a conflict.
During international armed conflicts, nationals of a State who flee
hostilities and enter the territory of an enemy State are protected by the

19
Resolution 45/6 of 16 October 1990. See IRRC, No. 279, November-December
1990, pp. 581-586.
20
In particular, headquarters agreements confer legal immunity and the inviolability
of premises and archives. ICRC delegates generally enjoy diplomatic immunity.
21
Article 1 of the Convention relating to the Status of Refugees (28 July 1951);
Article 1 of the Protocol relating to the Status of Refugees (31 January 1967). This
definition was expanded by the OAU Convention Governing the Specific Aspects of
Refugee Problems in Africa (10 September 1969), mainly to include persons having fled
from armed conflict or disturbances.

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Fourth Geneva Convention as aliens in the territory of a party to the

conflict (Articles 35 to 46 of the Fourth Convention). This Convention
requests favourable treatment for refugees on the part of the host country;
since, as refugees, they do not enjoy the protection of any government,
they must not be treated as enemy aliens solely on the basis of their
nationality (Article 44 of the Fourth Convention). Protocol I reinforces
this rule while also referring to the protection of stateless persons (Ar-
ticle 73 of Protocol I). Refugee nationals of a neutral State who find
themselves in the territory of a belligerent State are protected by the Fourth
Convention when there are no diplomatic relations between their State and
the belligerent State. Article 73 of Protocol I maintains this protection
even when diplomatic relations exist.
The Fourth Convention further stipulates that "In no circumstances
shall a protected person be transferred to a country where he or she may
have reason to fear persecution for his or her political opinions or religious
beliefs" (principle of non-refoulement, Article 45, para. 4 of the Fourth
Convention).
If, during the occupation of a territory, refugees again fall into the
power of a State of which they are nationals, they also enjoy special
protection: the Fourth Convention prohibits the Occupying Power from
arresting, prosecuting or convicting them, or from deporting them from
the occupied territory (Article 70, para. 2 of the Fourth Convention).
However, nationals of a State who flee from armed conflict to the
territory of a State that is not taking part in an international conflict are
not protected by international humanitarian law,22 unless this State is beset
by internal armed conflict, in which case they are protected by Article 3
common to the Geneva Conventions and by Protocol II. The refugees in
question are then the victims of two situations of conflict, one in their own
country, and the other in the country receiving them.

4.2 The ICRC's role

The Office of the United Nations High Commissioner for Refugees
(UNHCR) plays a role of paramount importance in work on behalf of
refugees.

22
Such situations are frequent, e.g. Afghan refugees in Pakistan and Iran; Iraqi
refugees in Iran during the Gulf war; and Rwandan refugees in Zaire, Burundi and
Tanzania.

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The ICRC considers itself to be directly concerned by the fate of

refugees who are civilian victims of armed conflicts or disturbances, or
of their direct results, i.e. situations covered by its mandate.23 ICRC action
for these refugees depends inter alia on their protection under interna-
tional humanitarian law.
In the case of refugees covered by humanitarian law, the ICRC steps
in to encourage belligerents to apply the relevant provisions of the Fourth
Geneva Convention. At the operational level, the ICRC seeks to obtain
access to the said refugees on the basis of this same Convention, and to
provide them with any protection and assistance they may need.24
As mentioned above, refugees are often not protected by humanitarian
law, i.e. when the host country is not party to an international armed
conflict or is itself not engaged in conflict. In such cases they are protected
only by refugee law and benefit from the activities of UNHCR. As a rule,
the ICRC then acts only in a subsidiary capacity and if it is the sole
organization in the area concerned.25 It withdraws once UNHCR and other
organizations take over so that it can carry out tasks more in keeping with
its specific role. The ICRC may, however, offer refugees the services of
its Central Tracing Agency at any time. It has also developed war surgery
programmes for wounded refugees.26
The ICRC does, however, feel concerned when refugees encounter
major security problems in host countries, particularly when violence or
even military operations are directed toward refugee camps near the
border.27 In this case, the ICRC is well placed to perform its role as a

23
See Francoise Krill, "ICRC action in aid of refugees", IRRC, No. 265, July-August
1988, pp. 328-350.
24
During the Iran/Iraq conflict, the ICRC thus took care of Iranian refugees in Iraq
and even helped with their resettlement in other countries. Following the Gulf war, the
ICRC also visited more than 20,000 Iraqis held in the Rafha camp in Saudi Arabia;
activities by the ICRC and UNHCR were mutually complementary.
25
The ICRC intervened on several occasions during the initial phase of an influx of
refugees, e.g. in the following cases: Iraqi Kurd refugees in Iran at the end of the Gulf
war (1991); Rwandan refugees in Goma (Zaire) and Ngara (Tanzania) in 1994. When
UNHCR was not present, the ICRC looked after Mozambican refugees in South Africa
and Iranian refugees in Iraq during the IranAraq war.
26
For example, hospitals for Afghan refugees in Peshawar and Quetta (Pakistan), and
for Cambodian refugees in Thailand.
27
For example, the ICRC launched an extensive operation in aid of Cambodian
refugees on the Thai-Cambodian border. See Ren6 Kosirnik, "Droit international
humanitaire et protection des camps de r6fugieV', in Studies and essays on international
humanitarian law and Red Cross principles, in honour of Jean Pictet, ICRC/Geneva;
Martinus Nijhoff Publishers, The Hague 1984, p. 387 ff.

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neutral and independent intermediary, and has concurrent competence

alongside that of UNHCR. With regard to security problems arising in
refugee camps particular note should be taken of two factors: the location
of such camps in dangerous areas close to the border where they are
exposed to hostilities, and the presence of combatants in the camps.
International humanitarian law provides some solutions to these problems,
though it must first be respected.
When both the ICRC and UNHCR are competent to take action, work
by the two organizations is carried out in a spirit of complementarity.
Concerted efforts and close coordination result in optimum assistance for
victims.
Attention is drawn here to the important role played by the National
Red Cross and Red Crescent Societies and their Federation in assistance
operations for refugees.
The repatriation of refugees is another area of considerable concern
to the ICRC. Although it generally does not engage in such operations,28
the ICRC considers that the States and organizations involved must care-
fully check that the time and conditions for the refugees' return are right.
Owing to its good knowledge of the refugees' country of origin, it can
analyse the situation and make recommendations to ensure that refugees
return home safely and in dignity. On several occasions the ICRC has
warned against the risk of over-hasty repatriations in unstable areas or
places where the infrastructure has been destroyed.29
The problem of landmines must be borne in mind here, with their
devastating injuries that most of all affect the civilian population. These
mines not only constitute a reason for displacement, they also seriously
impede the reconstruction of war-stricken countries and represent a major
obstacle to the return of refugees and displaced persons. The ICRC is of
the opinion that only a total prohibition of anti-personnel mines can put
an end to this scourge.

28
The ICRC does, however, supervise large-scale repatriations, of prisoners of war
in particular, such as those that took place between Iraq and Iran in 1990 (approximately
79,000 prisoners), and between Saudi Arabia and Iraq in 1991 (approximately
80,000 prisoners). The ICRC always ensured that each prisoner of war was willing to
be repatriated.
29
The ICRC has spoken out in particular against the repatriation of refugees to
Afghanistan, Cambodia, Croatia, Bosnia-Herzegovina and Rwanda. As regards Cambodia,
see ICRC Memorandum of 14 November 1990, partially reprinted in Frederic Maurice
and Jean de Courten, "ICRC activities for refugees and displaced civilians", IRRC,
No. 280, January-February 1991, pp. 9-21.

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5. Persons displaced within their own country

5.1 Protection under international humanitarian law
As previously seen, during armed conflict the civilian population is
entitled to an immunity intended to shield it as much as possible from
the effects of war. Even in time of war, civilians should be able to lead
as normal a life as possible. In particular, they should be able to remain
in their homes; this is a basic objective of international humanitarian law.
However, when civilians are forced to leave their homes owing to
serious violations of international humanitarian law, they are still a fortiori
protected by this law. This protection may come from the law applicable
either to international or to internal armed conflicts, as both types of
conflict may result in displacements of people within their own country.
The protection to which displaced persons, as civilians, are entitled
in the event of displacements due to international armed conflict is set
forth in considerable detail (Protocol I, for example, dedicates a major
section to it — Articles 48 ff.). The civilian population is also entitled
to receive items essential to its survival (Article 23 of the Fourth Con-
vention; Article 70 of Protocol I). The same holds true for the population
of occupied territories (Articles 55 and 59 ff. of the Fourth Convention;
Article 69 of Protocol I). In addition, the civilian population cannot be
deported from occupied territory.30 Generally speaking, the civilian popu-
lation enjoys the fundamental guarantees stipulated in Article 75 of Pro-
tocol I.
Civiliansfleeingfrom an internal armed conflict enjoy protection very
similar to that during international armed conflicts. Although the funda-
mental principles of this protection have been clearly spelt out, it must
be admitted that the rules are less specific. Owing to the predominance
nowadays of internal armed conflicts, a fairly detailed description will be
given here of the relevant rules.31
Article 3 common to the four Geneva Conventions is the cornerstone
of this protection. Although very short, it contains essential principles.

30
Article 49 of the Fourth Convention: the Occupying Power may, as an exception,
undertake evacuations "if the security of the population or imperative military reasons so
demand. Persons thus evacuated shall be transferred back to their homes as soon as
hostilities in the area in question have ceased".
31
See Denise Plattner, "The protection of displaced persons in non-international
armed conflicts", 1RRC, No. 291, November-December 1992, pp. 567-580.

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After pointing out that persons taking no active part in the hostilities must
be treated humanely in all circumstances, it prohibits the following acts:
violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture; the taking of hostages; outrages upon personal
dignity, in particular humiliating and degrading treatment; the passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the [fundamen-
tal] judicial guarantees. The Article also states that the wounded and sick
are to be collected and cared for.
These fundamental guarantees are repeated in Protocol II which, in
addition to the guarantees given in common Article 3, prohibits collective
punishments, acts of terrorism, and pillage (Article 4, paras 1 and 2). In
addition, the prohibition of outrages upon personal dignity explicitly
includes rape, enforced prostitution and any form of indecent assault.
Persons deprived of liberty also enjoy additional guarantees (Article 5).
Article 6 specifies judicial guarantees, while Articles 7 to 12 stipulate that
the wounded and sick, as well as those caring for them, must be respected
and protected. Finally, special protection is laid down for women and
children (particularly in Article 4, para. 3).
Afterwards, Protocol II stipulates that the civilian population is to be
protected from the effects of hostilities (Part IV): "The civilian
population...shall enjoy general protection against the dangers arising
from military operations" (Article 13). In particular, it must not be the
object of attack. Also prohibited are acts or threats of violence intended
to spread terror among the civilian population.
In addition, the use of starvation of civilians as a method of combat
is prohibited (Article 14). It is also prohibited to attack, destroy or remove
objects indispensable to the survival of the civilian population or render
them unusable (such as foodstuffs, agricultural areas, crops, livestock,
drinking water installations and supplies and irrigation works). Works and
installations containing dangerous forces — dams, dykes and nuclear
power stations — must not be attacked if such attacks may cause severe
losses among the civilian population (Article 15). Cultural objects and
places of worship are likewise protected (Article 16).
Protocol II also prohibitsforced movement of civilians. Such displace-
ments may be carried out only if required for the security of the civilians
involved or for imperative military reasons. When such is the case, all
possible measures must be taken in order that the civilian population may
be received under satisfactory conditions of shelter, hygiene, health, safety
and nutrition (Article 17). Although not expressly stipulated, it is under-
stood that such movements may be only temporary.

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Finally, whenever the civilian population is deprived of supplies

essential for its survival (such as foodstuffs and medical supplies), relief
actions "of an exclusively humanitarian and impartial nature and which
are conducted without any adverse distinction" are to be undertaken with
the consent of the State concerned.32
As regards the conduct of hostilities, in 1990 the International In-
stitute of Humanitarian Law at San Remo adopted a "Declaration on the
rules of international humanitarian law governing the conduct of hos-
tilities in non-international armed conflicts". It contains general prin-
ciples on the conduct of hostilities as well as rules on the use of certain
weapons.
Thus international humanitarian law adopts a global approach aimed
at safeguarding the civilian population as a whole. The fact that popu-
lation displacements are only rarely mentioned does not mean that legal
protection is lacking. On the contrary, compliance with the law should
help to prevent such displacements.
Evidently there will never be such a thing as 'total' legal protection;
even if every rule of international humanitarian law were respected,
population displacements would still take place.33 However, respect for
the rules would make it possible to avoid most displacements resulting
from war, which is at present the main cause thereof.
It is consequently essential that States not yet party to the Geneva
Conventions and their Additional Protocols should accede to these instru-
ments, and that belligerents should fulfil their obligations and scrupu-
lously apply the rules they have solemnly undertaken to respect.
The obligation to spread knowledge of humanitarian law, in particular
among the armed forces but also among the population at large, can never
be overstressed. Instruction in the rules of international humanitarian law
is a major preventive measure.

32
Article 18, para. 2 of Protocol II. When these conditions exist, the State must in
principle give its consent. As regards relief actions under humanitarian law, see Denise
Plattner, "Assistance to the civilian population: the development and present state of
international humanitarian law", IRRC, No. 288, May-June 1992, pp. 249-263.
33
The civilian population can suffer collateral or incidental damage loss (see Ar-
ticle 51, para. 5 and Article 57, para. 2 of Protocol I). Attacks are prohibited, or must be
stopped, if the loss of human life among the civilian population would be excessive in relation
to the concrete and direct military advantage anticipated (principle of proportionality).

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5.2 The ICRC's role

The whole problem of internally displaced persons calls for a dual
response from the ICRC: first, as promoter and guardian of international
humanitarian law and, second, as an operational agency providing pro-
tection and assistance to victims of armed conflicts and internal distur-
bances.34
By combining approaches to belligerents to promote respect for the
law with its operational activities in the field, the ICRC above all seeks
to create conditions whereby the civilian population can remain in their
homes whenever possible, in safety and dignity. Prevention is thus a major
aspect of its work. The magnitude of population displacements is evidence
of how arduous such a task is, and how difficult it is to diminish the
arbitrary treatment of civilians and the excesses committed against them.
Humanitarian action nonetheless plays a significant role, helping to curb
wanton violence and prevent the situation from deteriorating further.
As victims of armed conflicts or disturbances, internally displaced
persons unquestionably come under the mandate of the ICRC. They
consequently enjoy the general protection and assistance it affords to the
civilian population, which can be briefly summed up as follows:35
— protection of the civilian population; respect for international humani-
tarian law and humanitarian principles;
— visits to persons deprived of their freedom;36
— emergency medical assistance and rehabilitation (war surgery,
orthopaedics, support for medical facilities, etc.);
— assistance in public health programmes, particularly as regards the
supply of drinking water;
— emergency food aid and other assistance to cover basic needs (e.g.
material to make shelters, hygiene products, the distribution of seed,
and agricultural tools and fishing tackle, livestock vaccination);37

34
See Maurice and de Courten, op. cit.
35
See Harroff-Tavel, op. cit.
36
The purpose of these visits is to verify the detention conditions and the treatment
of detainees. In 1994, the ICRC visited more than 99,000 persons held in 2,470 places
of detention in 58 countries.
37
In 1994, the ICRC distributed 167,000 tonnes of supplies of all kinds in 45 coun-
tries.

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— activities to restore contact among family members separated by war

or disturbances, or to facilitate their reunification.38
The ICRC also offers its services to facilitate communication between
parties to conflict (e.g. by passing on messages of a humanitarian nature)
or the conclusion of humanitarian agreements (e.g. special agreements to
extend the applicability of international humanitarian law to an internal
armed conflict, or to make it possible to evacuate the wounded).
For the ICRC the concepts of protection and assistance are closely
linked and even inseparable.39
Most of the ICRC's work for displaced persons is carried out during
armed conflicts. Thanks to its recognized right of initiative and its neutral
and independent status, the ICRC is often best placed to take action during
hostilities, i.e., in situations where the dangers and consequently the
humanitarian needs are the greatest. Its specific nature and virtually
permanent contacts with all parties to conflict generally enable it to obtain
access — whether in government territory or in areas held by armed
opposition groups — to the victims it is mandated to protect and assist.
It cooperates as much as possible with National Red Cross and Red
Crescent Societies.
Recent ICRC activities in aid of displaced persons, particularly in
Rwanda and Chechnya, have been considerable. In Rwanda, the ICRC has
cared for more than one million civilians, most of them displaced per-
sons.40 In Chechnya, the ICRC has assisted hundreds of thousands of
people, many of them displaced. In both cases, as in general, its activities
were not confined to these groups of people but formed part of a whole
range of efforts on behalf of the civilian population.
Questions may arise as to the advisability of recourse to measures
intended to improve protection of the civilian population, in particular
displaced persons, against hostilities. The creation of special protected

38
In 1994, the Central Tracing Agency delivered 7,721,650 Red Cross messages to
and from separated family members.
39
See Jean-Luc Blondel, "Assistance to protected persons", IRRC, No. 260,
September-October 1987, pp. 451-468.
40
The ICRC's material aid, essentially in food and agricultural rehabilitation, is also
directed toward the particularly vulnerable members of the local population and, as the
need arises, toward returnees. The ICRC also carries out the following work in Rwanda:
visits to persons deprived of liberty; restoring family ties, particularly by registering
unaccompanied children; rehabilitation of the drinking water supply system; and basic
medical programmes.

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 INTERNATIONAL REVIEW OF THE RED CROSS

zones has thus been proposed, such as those provided for in international
humanitarian law41 or inspired by it. Practical experience has shown,
however, how difficult it is to set up such areas, and especially to ensure
their safety, which requires strict control over the area and therefore a
considerable deployment of personnel. It has also shown that a safety zone
will be all the more effective when it has been accepted by all parties
concerned. Moreover, a protected zone that has been imposed on the
parties fails to meet the requirements of international humanitarian law.
The ICRC has managed — in cases of extreme urgency and with the
consent of all parties — to render limited areas neutral by placing them
under its own control.
Great caution must be taken when creating safety zones, for they tend
to create a false sense of security among those they are meant to protect.
In certain cases, they may also have the undesired effect of placing those
outside the zone in even greater danger, detracting from the effectiveness
of the international humanitarian law which is destined to protect the
civilian population as a whole, without discrimination.
Care should also be taken to ensure that such measures do not limit
the right of displaced persons to leave their country and request asylum
abroad.

6. The International Red Cross and Red Crescent

Movement
Any description of activities to assist refugees and displaced persons
must also take into consideration the work of the Movement's other
components, namely the National Red Cross and Red Crescent Societies
and the Federation. The Movement has in fact adopted a specific policy
for these two categories of people.
The Movement's concern for them dates back a long time. However,
it was not until 1981, at the 24th International Conference of the Red Cross

41
As regards protection of civilians, see Article 14 of the Fourth Convention ("Hos-
pital and safety zones and localities"), Article 15 of the Fourth Convention ("Neutralized
zones"), Article 59 of Protocol I ("Non-defended localities"), and Article 60 of Protocol
I ("Demilitarized zones"). For a more detailed study of the matter, see Yves Sandoz, "The
Establishment of Safety Zones for Persons Displaced within their Country of Origin,"
presented at the Multi-choice Conference on International Legal Issues arising under the
United Nations Decade of International Law, Doha, Qatar, 22-25 March 1994.

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held in Manila, that the role of the Movement was clearly defined for the
first time, with the adoption of a resolution and a 10-point "Statement of
Policy" (Resolution XXI and Annex). Of particular note therein is a
general appeal to the Movement to help refugees, displaced persons and
returnees. It is also specified that all action undertaken must be in strict
accordance with the Fundamental Principles of the Movement.
In addition, the components of the Movement are invited to cooperate
with UNHCR and other institutions and organizations working on behalf
of refugees. Provision is made for consultations with UNHCR and for the
coordination of activities to ensure that efforts will be complementary. In
order to ensure consistency in the Movement's work, National Societies
are expected to inform the ICRC and/or Federation of any negotiations
likely to lead to an agreement with UNHCR. The ICRC and/or Federation
should be associated with the Society in the negotiations and concur with
the terms of agreement.
This Statement of Policy also demonstrates the specific protection the
ICRC offers as a neutral and independent institution. Furthermore, the role
of its Central Tracing Agency is stressed; in cooperation with National
Societies, the agency seeks to facilitate the reunification of dispersed
families, the exchange of family news and the tracing of missing persons.
The 25th International Conference, held in Geneva in 1986, reaffirmed
the role of the Movement in aid of refugees, displaced persons and
returnees (Resolution XVII), as did the Council of Delegates42 at its 1991
meeting in Budapest (Resolution 9), and in 1993 in Birmingham (Reso-
lution 7). The Resolution adopted in Birmingham "invites the components
of the Movement, in accordance with their respective mandates...to con-
tinue to act vigorously in favour of refugees, asylum-seekers, displaced
persons and returnees".
The Movement's efforts in favour of displaced persons are centred
around the specific roles of each of its components. Respect for these
roles, in a spirit of complementarity, is indeed the best guarantee for
effective action. The Statutes of the Movement and the Agreement con-
cluded in 1989 between the ICRC and the League (now known as the
Federation) provide the general framework for the various activities.
Broadly speaking, the assignment of tasks is as follows:

42
The Council of Delegates is the statutory body where the components of the
Movement meet to discuss matters which concern the Movement as a whole.

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 INTERNATIONAL REVIEW OF THE RED CROSS

— In situations of armed conflict, and whenever the presence of a spe-

cifically neutral and independent institution is necessary, the ICRC
assumes the general direction of the operation;43
— In situations of peace, the Federation coordinates the relief work of
the National Societies following any major disaster.44
A large number of National Societies have now set up major
programmes for refugees, displaced persons and returnees, often with the
support of the Federation. Many of these Societies act as implementing
agencies for UNHCR or other United Nations organizations. Such coop-
eration must be guided by the Movement's Fundamental Principles, a
requirement which is all the more important in a world where neutral and
impartial action is in constant danger of politicization.

7. Current challenges
The problem of population displacements, whether the people con-
cerned are refugees or persons displaced within their own country, pre-
sents a big challenge for the international community. Aspects concerning
displaced persons will be considered here.45
First of all there is the important work being carried out by Mr Francis
Deng, Representative of the UN Secretary-General on Internally Dis-
placed Persons.46 Input on this subject has been provided by the Human
Rights Commission, the UN Department of Humanitarian Affairs,47
UNHCR, the Centre for Human Rights and many non-governmental
organizations, some of which have been assigned the task by Mr Deng
of investigating certain legal48 and institutional49 aspects of the phenom-

43
Article 5, para. 4 of the Statutes of the Movement; Articles 18 and 20 of the 1989
Agreement.
44
Article 19 of the 1989 Agreement.
45
The current number of displaced persons is estimated to be around 25 million, or
even more, although the concept of 'displaced person' is not clearly defined. The causes
of displacement vary widely: armed conflict, disturbances, repression, natural disasters,
socio-economic conditions, and infrastructural projects (e.g. dams).
46
See in particular his latest report to the Commission on Human Rights, dated
2 February 1995 (ref. E/CN.4/1995/50).
47
The Department of Humanitarian Affairs has created an inter-agency work group
on displaced persons.
48
The Lugwig Boltzmann Institute for Human Rights (Austria), the American Society
of International Law and the International Human Rights Law Group (United States).
49
The Refugee Policy Group (United States) and the Norwegian Refugee Council
(Norway).

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enon of displaced persons. Many States are also joining in. As the subject
is of great importance to the ICRC, it is taking an active part in the debate
as well, in particular through dialogue with the Representative of the
Secretary-General.50
Careful consideration by the international community of how to ad-
dress the growing problem of displaced persons is essential. Present
efforts to increase awareness are commendable, valuable as they are in
drawing attention to a matter of serious humanitarian concern. Current
ideas on the subject are reviewed below.
To begin with, what should be done to improve humanitarian action
on behalf of displaced persons? In view of the large numbers and vast
needs of these people, greater cooperation between the humanitarian
agencies, particularly UN bodies and non-governmental organizations, is
of paramount importance. This cooperation must be increased in a spirit
of complementarity and must take their respective mandates into account.
To be truly neutral and impartial, humanitarian action must moreover be
independent of all political and military considerations, for only then is
it possible to reach all victims.51 States must also recognize that humani-
tarian action has its limits; although indispensable, it is but a temporary
remedy for problems that can be solved only by political means, with
assistance from the international community when required.
The question then arises as to a possible development of the law. This
is a delicate matter, for there are already many legal regulations, and, when
new rules are created (e.g. a convention on displaced persons), care must
be taken not to undermine the existing law. Another moot point is the
advisability of creating rules aimed solely at protecting displaced persons,
which could result in discrimination against other victims who also de-
serve to be protected. The traditional humanitarian law approach, based
on needs arising from a given situation (armed conflict), therefore appears
preferable to an approach centred on specific categories of people in every
situation.
Proposals intended to reaffirm certain essential principles and rules
of humanitarian law and human rights law in order to improve protection
of displaced persons must on the other hand be encouraged, provided that

50
See the ICRC's reply November 1992 to Mr Deng which is reproduced in this issue
of the IRRC, pp. 181-191.
51
See Code of conduct for the International Red Cross and Red Crescent Movement
and non-governmental organizations (NGOs) in disaster relief.

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the existing law is upheld and not weakened (there has been talk of a set
of principles, a code of conduct or a declaration). It is true that in situations
not covered by international humanitarian law, existing law perhaps does
not yet provide optimum protection for the civilian population, and con-
sequently for displaced persons, although the power to waive certain
human rights at times of exceptional public danger is limited. It should
be noted that population displacements are mentioned in Article 7 of the
Turku Declaration.
In general, however, efforts by the international community should be
concentrated first and foremost on improved implementation of interna-
tional humanitarian law by all belligerents. This should help to bring
about a considerable reduction in the number of displaced persons and
refugees.52

Jean-Philippe Lavoyer was born in 1950 in Berne (Switzerland), where he

obtained his degree as a barrister in 1976. From 1984 to 1988, he was an ICRC
delegate in South Africa, Somalia and Afghanistan. After three years with the
ICRC's Legal Division in Geneva, he was assigned to Kuwait (1991-1994). He
has now rejoined the Legal Division, and continues to carry out regular missions,
particularly for the purpose of disseminating international humanitarian law.

52
In an effort to increase respect for humanitarian law, in 1993 the Swiss Government,
at the ICRC's suggestion, organized the International Conference for the Protection of War
Victims. The next International Conference of the Red Cross and Red Crescent, to be held
in Geneva in December 1995, will also discuss measures to be taken to increase this
respect.

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