Refugees and IDPs

Singapore Journal of International & Comparative Law
(2003) 7 pp 236–266
Refugees and Internally Displaced Persons: Examining

Overlapping Institutional Mandates of the ICRC and
the UN High Commissioner For Refugees
E. Odhiambo-Abuya∗
[I]n an age when we hear so much of progress and civilisation, is it not a matter of
urgency, since unhappily we cannot always avoid wars, to press forward in a human
and truly civilised spirit the attempt to prevent, or at least alleviate, the horrors
of war?1
I. Introduction
While most armed conflicts previously took place on the international
plane, today most conflicts are internal,2 pitting Government forces
against non-state actors like rebels and militia. Nonetheless, these
conflicts still lead to the large-scale displacement of men, women,
and children seeking sanctuary in neighbouring states. However, the
nature of forced migration is increasingly changing, as increasing
numbers of people are forced to seek sanctuary within the borders
of their own state, as internally displaced persons (hereafter ‘IDPs’).
This largely stems from the non-admission, expulsion and return of
refugees by States who refuse to offer safe haven.3 Together, these two
forces—internal conflict and closure of asylum doors—have turned
IDPs into the ‘fastest growing group of uprooted persons in the
∗ Faculty of Law, Moi University Eldoret, Kenya and Doctor of Juridical Studies can-
didate, The University of Sydney, Australia. E-mail:Edwina@keller.law.usyd.edu.au. I
would like to thank Joseph Kihanya, Anthonios Theodoropoulos and Joellen Riley
for their comments on earlier drafts of this article. Thanks are due, too, to the referee
of this Journal and Dr. Thio Li-ann for the excellent editorial advice. Any errors and
opinions expressed are mine. This article is dedicated to all refugees and IDPs.
1 Jean Henry Dunant, founder of International Humanitarian Law, quoted by Gretchen
Kewley ‘Law in War’ (1985) 59 Law Institute Journal 433 at 437.
2 See Preamble Protocol Additional to the Geneva Conventions of 12 August 1949, and relat-
ing to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S
(entered into force 7 December 1978) (hereafter ‘Additional Protocol II’), acknowl-
edging ‘about 80% of the victims of armed conflicts since 1945 have been victims of
non-international conflicts . . . fought with more cruelty that international conflicts.’
3 See IRIN Web Special on Internal Displacement, ‘Legal Basis of the Guiding Princi-
ples’, available at the website of the IRIN at http://www.irinnews.org (visited 9 April
2003). Francis Deng, the Representative of the UN Secretary-General on IDPs in an
interview admits ‘there are a number of governments who are not opening [asylum]
doors, and this is the challenge for the United Nations and the international system’
for economic, political and or racist reasons.
7 SJICL Refugees and Internally Displaced Persons 237
world’.4 Without specifically mentioning IDPs, the United Nations

General Assemblyin 1992 noted ‘with concern’:
The number of refugees and displaced persons of concern to the
High Commissioner, as well of other persons whom her office had
been asked to extend assistance and protection, has continued to
increase and that their protection continues to be seriously jeopar-
dized in many situations as a result of . . . threats to their physical
security, dignity and well-being, and lack of respect to their physical
security, dignity and well-being, and lack of respect for fundamental
freedoms and human rights.5
At the end of 2001, UNHCR reported some 5 million IDPs.6
Like their refugee counterparts who receive legal protection in
third States, IDPs also need protection against human rights and other
abuses committed within their home States. However, as the UNHCR
notes, there is a primary dilemma:
[IDPs] often face a far more insecure future. They may be trapped
in an ongoing internal conflict, without a place of safety to stay. The
domestic government, which may view the uprooted people as ene-
mies of the state, retains ultimate control over their fate. There are no
specific international instruments covering the internally displaced, and
general agreements such as the Geneva Conventions are often dif-
ficult to apply. Until now, donors have been reluctant to intervene
in internal conflicts and help this group.7 (emphasis added)
Deborah Perluss and Joan F. Hartman express similar senti-
ments and while comparing the plight of IDPs with their refugee
counterparts add:
Unlike a refugee, a person fleeing from internal armed conflict
does not seek to disestablish his ties of nationality or allegiance to
4 See UNHCR, ‘Refugees by Numbers 2001 Edition’, available at the website of the
UN High Commissioner on Human Rights at http://www.unhchr.ch (visited 13 May
2002).
5 Preamble to UNGA Doc. A/RES/47/105, adopted at the 89th Plenary Meeting, 16
Dec 1982. Similarly, United Nations, ‘More Information/Humanitarian Affairs’ avail-
able at the website of the United Nations at http://www.un.org (visited 25 March
2003) acknowledges ‘in the last decade, civil wars have become a central cause of
emergency situations. In 1999 alone, millions were uprooted from their homes by
war-1.2 million in Angola, 850,000 in Kosovo, 750,000 in Ethiopia and Eritrea, 550,000
in East Timor, 200,000 in Chechnya and countless more in other conflicts around the
world’.
6 UNHCR, Statistical Yearbook: Refugees, Asylum-seekers and Other Persons of Concern-
Trends in Displacement, Protection and Solutions, (2002) (hereafter ‘UNHCR Statistical
Yearbook’) at 22.
7 See UNHCR, ‘UNHCR and the internally displaced: questions and answers’, available
at the website of the UNHCR at http://www.unhchr.ch (visited 14 August 2002).
238 Singapore Journal of International & Comparative Law (2003)
his country on a temporary or permanent basis . . . [The] need

for relief, and therefore temporary refuge, lasts only until the
government can [guarantee] . . . de facto protection.8
To ameliorate the suffering of victims of war, civil strife or conflict,
two agencies were established—the International Committee of the
Red Cross (hereafter ‘ICRC’) in 1863, and the United Nations High
Commissioner for Refugees (hereafter ‘UNHCR’) in 1950.9 The dif-
ference between the two lies mainly in their nature. The UNHCR, an
agency of the United Nations (hereafter ‘UN’), is a public interna-
tional organization over which Governments have direct influence.10
In contrast, the ICRC is a unique private international organization.
It is neither an inter-governmental organization nor UN organ but
notwithstanding this, Governments have conferred upon it an interna-
tional mandate,11 distinguishing it from other NGOs. Both agencies
pursue humanitarian goals, which is central to their mandate. The
UNHCR is mandated to protect refugees—persons who have fled
across boundaries into third States to escape from persecution.12
In contrast, the ICRC’s original mandate was to protect victims of
international armed conflicts,13 whether they had crossed an interna-
tional frontier or not. In 1977, this mandate was extended through
Additional Protocol II, Relating to the Protection of Victims of
Non-International Armed Conflicts14 (hereafter ‘Additional Protocol
II’) to internal wars.15
8 Deborah Perluss and Joan F. Hartman ‘Temporary Refuge: Emergence of a Custom-

ary Norm’ (1986) 26 Virginia J. of Int’l L.551, at 597–598.
9 See art 1 of the Statutes of the International Committee of the Red Cross underscoring
that the ICRC is a ‘humanitarian organization’. Similarly, art 1 of the Statute of the
Office of the United Nations High Commissioner for Refugees, adopted by General Assembly
Resolution 428 (V) of 14 December 1950 (hereafter ‘UNHCR Statute’), describes
UNHCR mandate ‘to provide international protection . . . to refugees . . . and [seek]
permanent solutions for [this] problem . . . by assisting Governments and, private
organizations to facilitate the[ir] voluntary repatriation . . ., or assimilation within
new national communities’.
10 Art 1 of the UNHCR Statute states: ‘The [UNHCR], acting under the authority of the
General Assembly, shall assume [its] function[s] . . . under the auspices of the [UN]
. . . .’
11 See ICRC, International Humanitarian Law: Answers to your Questions (Geneva: ICRC
Productions) at 2 declaring the ICRC’s ‘mandate was handed down by the interna-
tional community’.
12 See UNHCR Statute, arts. 1 and 6 (ii); United Nations Convention Relating to the Status of
Refugees 28 July 1951, 189 U.N.T.S. 137 (entered into force 22 April 1954) (hereafter
‘Refugee Convention’), art 1 (A)(2); and its attendant Protocol relating to the Status
of Refugees 31 January 1967, 606 U.N.T.S. 267 (entered into force 4 October 1967)
(hereafter ‘Refugee Protocol’), art 2.
13 See the four Geneva Conventions of 12 August 1949.
14 8 June 1977, U.N.T.S. 1125, (entered into force 7 Dec 1978).
15 See also Preamble to Additional Protocol II acknowledging: ‘The only provision appli-
cable to non-international armed conflicts before the adoption of the [Additional
The UN was established primarily to protect and safeguard all

human beings on earth ‘from the scourge of war’ which twice-brought
‘untold sorrow’ and human suffering.16 However, specific reference
to IDPs as a special category of displaced persons was only made in
1992. Previously, IDPs were lumped together with refugees17 who are
protected by specific international treaties. This left IDPs without
any effective international protection or national protection where
their home state was unwilling or unable to protect them. Unlike
refugees who receive international protection, IDPs were treated as
falling within the ‘internal affairs’ of a sovereign state,18 reflecting
the international community’s reluctance to intervene. Nonetheless,
the international community will today intervene in conflicts to pre-
vent acts that threaten international peace and security,19 which may
stem from gross human rights violations and property destruction.
In this connection, various UN General Assembly Resolutions dating
from 199220 have conferred a selective limited mandate to under-
take humanitarian assistance and provide protection to protection to
IDPs upon the UNHCR. Hence, protecting IDPs is a ‘logical exten-
sion’ of its general work with refuges.21 Practically, it would be odd
for the UN established UNHCR to assist only displaced persons who
have crossed international borders but not those seeking refuge within
Protocol II] was art 3 common to all four Geneva Conventions . . .. This Article proved
to be inadequate in view of the fact that about 80% of the victims of armed conflicts
since 1945 have been victims of non-international conflicts . . .’.
16 See preambles to UN Charter and Universal Declaration of Human Rights, GA Res. 217
(III), UN GAOR, 3d Sess., Supp. No 13, UN Doc. A/810 (1948) (hereafter ‘UDHR’).
17 For instance, see UN General Assembly quoted at supra, note 6.
18 For a further discussion of this principle, see Part IV.
19 See generally, UN Charter Chapter VII. The power to intervene was exercised, for
instance, when the Iraqi government attacked the Kurds after the first Gulf War
(1991), during the Rwanda genocide (1994) and war in the former Zaire (1996).
20 In discussing the juridical status of General Assembly resolutions, the US State Depart-
ment asserted: As a broad statement of U.S. policy in this regard, I think it is fair to
state that General Assembly resolutions are regarded as recommendations to Member
States of the United Nations. To the extent, which is exceptional, that such resolu-
tions are meant to be declaratory of international law, are adopted with support of all
members, and are observed by the practice of states, such resolutions are evidence of
customary international law on a particular subject matter. Quoted in David J. Harris,
Cases and Materials on International Law, 4th ed. (London: Sweet and Maxwell, 1991)
at 63.
21 UNHCR itself acknowledges assisting ‘several millions’ IDPs over the years albeit
a specific formal IDP mandate. See UNHCR, ‘Protecting Refugees: Questions and
Answers’, available at the UNHCR website at http://www.unhcr.org (visited 6 Decem-
ber 2001). See also Elizabeth E. Ruddick ‘The Continuing Constraint of Sovereignty:
International Law, International Protection, and the Internally Displaced’ (1997) 77
(2) Boston Univ. L.R. 429 arguing that notwithstanding a formal IDP mandate the
UNHCR ‘acted pursuant to its flexible, extra-statutory “good offices’‘ powers to bring
IDPs within its area of concern’ (at 431).
national borders and equally susceptible to conflict and human rights

violations.22
This article investigates the overlapping institutional and oper-
ational mandate of the UNHCR and ICRC with regard to IDP
protection, and asks whether the ‘gap’ in protection has been
adequately addressed. Notably, international refugee law and interna-
tional humanitarian law23 (hereafter ‘IHL’) were originally directed at
situations of inter-state conflicts and towards trans-border population
movements. This article argues that the previous paradigm cannot
accommodate the fact that there are displaced vulnerable people
trapped in internal armed conflict situations who need protection.
Part II analyses the changing nature of the refugee problem from the
Cold War era (inter-state conflict) to contemporary problems caused
by internal armed conflicts. Whilst this article is located in the broader
area of the problem of forced migration, it argues that international
refugee law was not designed to cater for certain aspects of this flow.
Part III, addressing state attitudes towards the plight of IDPs, demon-
strates that unlike the Cold War era practice of offering asylum to
persons fleeing from persecution, contemporary state practice has
shifted towards the non-admission of potential refugees. Such prac-
tices not only force victims of persecution to seek protection within
their home states, but significantly increases the size and suffering
of the global IDP population. Part IV identifies inadequacies in the
existing legal framework and programmes adopted by the ICRC and
UNHCR to meet this problem. Generally, humanitarian intervention
within a state is contingent upon that state’s consent, in respecting
state sovereignty.24 The principle of state sovereignty is discussed in
relation to possible arguments that humanitarian intervention by the
ICRC and UNHCR should be allowed. Part V evaluates the Guiding
Principles on Internal Displacement, a cross-fertilization between IHL
and international refugee law. Part VI concludes by evaluating the
existing standards and recommends increased cooperation between
the two agencies in their quest to protect IDPs.
II. Changing Nature of the Refugee Problem:

From the Cold War to Contemporary Problems
Originally, the UN Convention Relating to the Status of Refugees25
(hereafter ‘Refugee Convention’), drafted after an inter-state war,
22 See also UDHR art 16 guaranteeing ‘everyone’ the ‘right to seek and enjoy . . . asylum
from persecution’ in third states.
23 Until Additional Protocol II.
24 Pursuant to UN Charter art 2(7).
25 28 July 1951, 189 U.N.T.S. 137 (entered into force 22 April 1954).
contained provisions that only related to refugees whose situation

was caused by pre-1951 events in Europe.26 However, subsequent
events, especially in Africa during the late 1950s and 1960s, neces-
sitated the removal of this temporal and geographical limitation to
allow a broader application of this convention. However, the con-
temporary shift from inter-state towards internal armed conflict has
necessitated the drafting of pragmatic documents to meet this new
situation. This section traces this development and Refugee Protec-
tive Treaties that have arisen in relation to the era of internal armed
conflict to protect refugees and IDPs. It also discusses the meaning of
the term ‘protection’, which repeatedly appears in ICRC and UNHCR
Instruments but is not formally defined.
A. From Cross-border Refugees to Attempts at Protecting

Internally Displaced Persons
The term ‘refugee’ referred initially to two categories of individuals.
First, those recognised as refugees by the pre-1950 legal framework.27
Secondly, any person who:
as a result of events occurring before 1 January 1951, and owing to

well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or
unwilling to avail himself of the protection of that country; or not
having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it.28
The temporal and geographical limitations were written into the

Refugee Convention since European states, then recovering from
World War Two, were reluctant to saddle themselves with uncertain
refugee influxes in the post World-war II era.29 However, the global
persistence of this problem after 1951, particularly stemming from
26 Refugee Convention arts. 1A(2) and 1B(1).

27 For a complete catalogue see UNHCR Statute (art 6A(i) ) and Refugee Convention
(art 1A(1) ).
28 Refugee Convention art 1A(2) and High Commissioner’s Statute art 6(ii).
29 See, Paul Weis ‘The International Status of Refugees and Stateless Persons’ (1956)
1 Journal du droit International 4 citing a Report of the Ad Hoc Committee on
Refugees and Stateless Persons, which drew up the Convention UN Doc E/1618,
p. 38, which stated: ‘It would be difficult for Governments to sign a blank cheque
and to undertake obligations towards future refugees, the origin and number of
whom would be unknown’ (at 30).
the African wars of independence in the late 1950s and 1960s, neces-
sitated a removal of these limitations.30 For the Refugee Convention
to remain relevant and apply as a universal treaty, it had to change
its Euro-centric31 orientation. Consequently, the 1967 Protocol Relat-
ing to the Status of Refugees32 (hereafter ‘Refugee Protocol’), was
adopted33 to enable the Refugee Convention to cater to new refugee
situations on a universal basis.
Later refugee protective treaties, particular regional ones, dis-
played a realistic appreciation of altered armed conflicts patterns.
Two examples may be cited, which both contain a more pragmatic
definition of the term ‘refugee’. First, the 1969 African Convention
Governing the Specific Aspects of Refugee problems in Africa34 (here-
after ‘OAU Refugee Convention’) recognised internal wars and civil
strife as root causes of forced migration. Article 1(2) of the OAU
Refugee Convention defined ‘refugee’ to include:
every person who, owing to external aggression, occupation, for-
eign domination or events seriously disturbing public order, in
either part or the whole of his country of origin or nationality,
is compelled to leave his place of habitual residence in order to
seek refuge in another place outside his or origin or nationality.
Secondly, in 1984 certain Latin American States in the Cartagena
Declaration on Refugees35 (hereafter ‘Cartagena Declaration’) drew
30 There is a great deal of academic writing expressing similar sentiments see, for
instance: Atle Grahl-Madsen ‘The Emergent International Law Relating to Refugees:
Past-Present-Future’ in Institute of Public International Law and International Rela-
tions of Thessaloniki, Refugee Problem on Universal, Regional and National Level, ed., Vol.
XIII (Thessaloniki, 1987) 169 at 190; Paul Weis ‘The 1967 Protocol Relating to the
Status of Refugees and Some Questions of the Law of Treaties’ (1967) British YBIL 39
at 40; Paul Weis ‘The Office of the United Nations High Commissioner for Refugees’
Revue de Droit International et Compare 243 at 247.
31 See, Goran Melander, ‘Further Development of International Refugee Law’ in Insti-
tute of Public International Law and International Relations of Thessaloniki, supra
note 31, 473 at 484 arguing stating: ‘The [Refugee] Convention was considered to
be a European agreement, which dealt with a European problem. The African states
wanted to draw up an instrument, which took into consideration the fact that in
Africa there were new categories of refugees who were compelled to leave their coun-
try of origin without being persecuted for reasons mentioned in the 1951 Refugee
Convention’.
32 31 January 1967, 606 U.N.T.S. 267 (entered into force 4 Oct 1967).
33 See art 1(2).
34 Adopted by the Assembly of Heads of State and Government at its Sixth Ordinary
Session (Addis Ababa, 10 Sept 1969) (entered into force 20 June 1974).
35 Adopted at a colloquium entitled: ‘Coloquio Sobre la Proteccion Internacional
de los Refugiados en American Central, Mexico y Panama: Problemas Juridicos y
Humanitarios’ held at Cartagena, Colombia from 19–22 November 1984. For an
excellent comparison between the Cartagena Declaration and OAU Refugee Con-
vention ‘refugee’ definitions see Eduardo Arboleda ‘Refugee Definition in Africa
and Latin America’ (1991) 3 (2) Int’l J. of Refugee Law 185.
upon their ‘experience’ with mass influx in this region. They argued,
‘it was necessary to enlarge’ the definition of the term refugee beyond
the Refugee Convention and Protocol and incorporate internal con-
flict as a root cause of forced migration. Whilst acknowledging the
OAU Refugee Convention definition as a suitable ‘precedent’ the
Cartagena Declaration defined ‘refugee’ more expansively to include:
persons who had fled their country because their lives, safety or
freedom have been threatened by generalized violence, foreign
aggression, internal conflicts, massive violation of human rights . . .36
(emphasis added)
Attempts to create a formal international mandate for IDPs began
in earnest37 in 1992, when the UN Economic and Social Council38
(hereafter ‘ECOSOC’), drew a distinction between IDPs and refugees,
describing the former as:
persons who have been forced to flee their homes, as a result of
armed conflict, internal strife, systematic violations of human rights
or natural or man-made disasters.39
Three characteristics of the IDPs may be identified from this.
First, the involuntary or forced nature of the IDP movement is
36 Art III(3).
37 This process may be traced back to 1990 when ECOSOC under UN Charter art 62(2)
which mandates it to ‘make recommendations [to the UN General Assembly] for the
purpose of promoting respect for, and observance of, human rights and fundamental
freedoms for all’, requested the UN Secretary-General to: ‘initiate a United Nations
system-wide review to assess the experience and capacity of various organizations in
the coordination of assistance to all refugees, displaced persons and returnees and,
on the basis of such review, to recommend ways of maximizing cooperation and
coordination among various organizations of the United Nations system in order
to ensure an effective response to the problems of refugees, displaced persons and
returnees.’ See Note by the Secretary-General, ‘Internally Displaced Persons’, UN
doc. GA/48/579 (9 Nov 1993).
38 ECOSOC is one of the principal organs established by the UN under art 7(1) UN
Charter. Article 62 of the UN Charter outlines four functions of the ECOSOC:
(1) [M]ake or initiate studies and reports [focussing] on international economic,
social, cultural, educational, health and related matters . . ..
(2) [M]ake recommendations for the purpose of promoting respect for, obser-
vance of, human rights and fundamental freedoms for all.
(3) [P]repare draft conventions for submission to the General Assembly, with
respect to matters falling within its competence.
(4) [C]all . . . international conferences on matters falling within its competence.
See also Chapter X UN Charter, for its Composition, Voting rights and Procedures.
39 Francis Deng ‘The International Protection of the Internally Displaced’ (1995) spe-
cial issue International Journal of Refugee Law 74 at 76. See also UN Charter art
62(2) mandating ECOSOC to ‘make recommendations [to the UN General Assem-
bly] for the purpose of promoting respect for, and observance of, human rights and
fundamental freedoms for all’.
acknowledged. Second, the major root causes of this displacement

stems from armed conflict, internal strife, systematic human rights
violations and natural or human-made disasters. Third, IDPs are
located within the confines of their own country. A Representative
of the UN Secretary-General on IDPs (hereafter ‘IDP Representa-
tive’) was appointed in 1992 and in 1998, after various discussions
and improvements,40 defined IDP thus:
persons or groups of persons who have been forced or obliged to

flee or leave their homes of habitual residence, in particular, as a
result of or in order to avoid the effects of armed conflict, situations
of generalised violence, violation of human rights or natural or
human-made disasters, and who have not crossed an internationally
recognised State border.41
The IDP Representative’s definition is similar to the ECOSOC one.

As Parts V and VI demonstrate, this definition is gradually gathering
force of law through application by States and other agencies seeking
to ameliorate the plight of IDPs.
B. ‘Protection’ within the Ambit of UNHCR and ICRC operations

The UNHCR and ICRC predominantly discharge their refugee man-
date through ‘protection’, a term repeatedly used but not formally
defined in the working and statutory languages of these agencies.42
Even so, what amounts to ‘protection’ in Europe or Africa may differ
in Asia today or America tomorrow. ‘Protection’ is a term of art rather
than a legal expression capable of precise definition. It’s meaning,
however, will change depending on who is being protected and where
they are located. While this flexible understanding allows the accom-
modation of unforeseen contingencies, the lack of certainty creates a
fear that the term may be abusively deployed. Nonetheless, at least two
elements of ‘protection’ can be identified. The first may be derived
from the two agencies’ working language. For example, the ICRC
considers
. . . “to protect’‘ implies preserving victims of conflicts who are in

the hands of an adverse authority from the dangers, sufferings and
40 See Note by the Secretary General, ‘Internally Displaced Persons’, UN doc.

GA/54/409 (29 Sept 1999) chapter II.
41 Principle 2, Guiding Principles on Internal Displacement, 1998 (hereafter ‘Guiding
Principles’).
42 See ICRC statute art 4 and UNHCR statute art 1.
abuses of power to which they may be exposed, defending them

and giving them support.43
The second draws upon a general reading of Refugee Treaties, and

the additional Protocols44 to the 1949 Geneva Conventions. The term
‘protection’ by inference means employing legal and administrative
mechanisms to guard and preserve the vulnerable lives of human
beings against the dangers arising from ‘military operations’45 and
natural causes. Minimally, ‘protection’ requires the maintenance of
human life to a level that is as normal as possible, regardless of whether
an individual fleeing persecution is situated within their native state
or is within a third state.
With respect to refugees, perhaps the rights generally accorded
to citizens may be an appropriate standard to use in evaluating what
‘protection’ requires in concrete terms, excepting specific citizens’
rights.46 It is unlikely, though, that the drafters of the Universal Dec-
laration of Human Rights (hereafter ‘UDHR’) had in mind refugees
when drafting the text. Even so, an analogy can be drawn from the
Refugee Convention read together with the UDHR in terms of min-
imal protective rights to a refugee. Namely, rights and freedom to
life, religion, marry and found a family, nationality, and seek and
enjoy asylum; and prohibition against refoulement,47 torture, arbitrary
arrest rape, forced prostitution and indecent assault of women, tor-
ture, blackmail and bribery, and slavery. Admittedly, events causing
refugees and internal displacement are quite similar. Analogically,
IDPS should minimally be granted protection, before, during and
after flight, but without the application of the non-refoulement principle
as they remain within their home state borders. However, a poten-
tial problem may arise with regard to IDPs. The Refugee Convention
relates to obligations of the international community and the host
(third) state, while IDPs may actually be victims of the home State or
non-State actors therein. If the home State is unable or unwilling to
provide aid or protection, this creates a gap. The situation may further
be complicated by state sovereignty issues, discussed in Part IV.
43 ICRC ‘The ICRC, the League and the Report on the Re-Appraisal of the Role of the
Red Cross’ (March–April 1978 to January–March 1979) Int’l Rev. of the Red Cross 1.
44 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts 8 June 1977, 1125 U.N.T.S. (entered into force
7 Dec 1978) (hereafter ‘Additional Protocol I’) and Additional Protocol II.
45 See Additional Protocol I art 51.
46 For instance, rights to social security, free public education, property ownership, and
issuance of passports.
47 That is, prohibition against forceful expulsion or return of a refugee to their state of
origin where they face threats of persecution (Refugee Convention art 33).
III. Domestic Politics and Asylum: From Admission to

“Keep-out” Policies and Practices
This section examines policies that have been advanced or adopted
in Western States facing an influx of asylum seekers, to justify denial
of entry into their territory. Such policies and practices, crafted by
domestic politics, directly affect the global IDP population. First, the
Australian ‘Interception and Deflection’ policy is examined, followed
by the French and Dutch ‘we are overloaded’ argument.
A. Interception and Deflection Policies: The Australian case

What is today known as the ‘Tampa’ saga48 in Australia refers to the
problem of unauthorised boat arrivals, which began on 26th August
2001 with Australia’s refusal to accept 438 people rescued at sea (here-
after ‘rescuees’),49 by a Norwegian-registered container ship, MV
Tampa (hereafter ‘Tampa’). Subsequently, a standoff ensued between
Australia and Norway. Australia insisted the rescuees be returned to
Indonesia—their original port of departure. Norway’s considered that
Australia was morally obliged to take them in. After all, it was where the
rescuees indicated they wished to go to seek asylum as refugees. While
public interest litigants—among them the Victorian Council for Civil
Liberties Incorporated and the Human Rights and Equal Opportuni-
ties Commission—brought proceedings against the Government, the
standoff was internationally resolved through adopting the ‘Pacific
Solution’.
Prior to the Tampa saga, Canberra allowed asylum seekers arriving
by boat to land in Australian territory where their asylum claims were
processed. Under the ‘Pacific Solution,’ asylum seekers are no longer
allowed to set foot onshore. Instead, boats are intercepted at sea and
asylum seekers trans-shipped to neighbouring Pacific States such as
Nauru and Papua New Guinea (hereafter ‘PNG’), for claim process-
ing. The Australian Government is of the opinion that this will deter
48 For a full text of the case see: Victorian Council for Civil Liberties Incorporated v Minister
for Immigration and Multicultural Affairs [2001] FCA 1297 (11 Sept 2001) overruled by
Minister for Immigration and Multicultural Affairs and Others v Victorian Council for Civil
Liberties Incorporated and Others [2001] FCA 1329 (18 Sept 2001). See also the final
appeal to the High Court, Minister for Immigration and Multicultural Affairs and Others
v Victorian Council for Civil Liberties Incorporated and Others [2001] FCA 1865 (21 Dec
2001).
49 Justice North, Victorian Council for Civil Liberties Incorporated v Minister for Immigration
and Multicultural Affairs [2001] FCA 1297 (11 Sept 2001), coined this term, as a neutral
term, to describe the 438 people rescued from the MV Tampa.
illegal migration50 or ‘queue jumpers’.51 Further, even those found

to be genuine refugees are not automatically admitted into Australian
territory.52 They may be sent to other States willing to admit them as
refugees. When Australia sent a message to other states to share this
burden,53 only Ireland and New Zealand responded positively pledg-
ing to take only 15054 and 5055 rescuees respectively. This remains a
drop in the bucket considering, as of February 2002, there were 446
detainees in Manus Island, PNG and 1118 in Nauru.56
The Pacific Solution is best understood from a political dimension.
2001 was an important elections year in Australia. Before the Tampa
saga, opinion polls revealed that Prime Minister Howard’s Govern-
ment trailed the opposition in terms of popularity. Justice North, of
the Federal Court, handed down the first decision in the Tampa case,
instituted by the Victorian Council for Civil Liberties Incorporated on
behalf of the rescuees,57 on September 11 hours before the terrorist
attacks in the USA. As Mary Crock and Ben Saul argue, ‘the disas-
ter might not have come at a worse time for Australia’s boat people,
50 See Department of Immigration, Multicultural and Indigenous Affairs, ‘Offshore

Processing Arrangements’ Fact Sheet No.76, 14 February 2003, on the number of
‘unauthorised’ boats that have been stopped from reaching mainland Australia since
the Tampa saga.
51 This is a term coined by the Australian Government to denote those who do not
lodge their asylum applications off-shore, or follow the queue so to speak. Since
Australia has set aside only 12 000 asylum spaces annually, it means that for every
boat person granted refugee status, it is one position less for a (genuine) asylum
seeker, ‘applying from offshore . . . waiting patiently, in the Minister’s mind at least,
in some squalid and crowded [refugee] camp’. See P Mares quoted by U.S. Com-
mittee for Refugees, Australia: Sea Change: Australia’s New Approach to Asylum Seekers,
http://www.refugees.org/downloads/Australia.pdf (visited 4 May 2002). See also
Steve Liebmann in an interview with Prime Minister John Howard, The Today Show,
Channel Nine, 25 January 2002, where PM Howard claims that owing to the Pacific
Solution people smugglers were finding it more difficult to convince people that it is
easy to come to Australia illegally.
52 See Oxfam Community Abroad, ‘Adrift in the Pacific: The Implications of Australia’s
Pacific Refugee Solution’ (2002) (hereafter ‘Oxfam Report’) 15.
53 This was pursuant to the Refugees Convention’s foundational principle of ‘burden
sharing’. Preamble to the Refugee Convention acknowledges, ‘the grant of asylum
may place unduly heavy burdens on certain countries’, hence proposes ‘international
cooperation’ as a practical measure to ‘distribute’ the load. It is interesting, though,
to realise that the Australian Government applies the Refugee Convention selectively.
Whilst it reminds other States of their ‘burden sharing’ obligations under the Refugee
Convention, via the Pacific Solution it goes against one of the fundamental principles
of this very Treaty and UDHR, the right to asylum (see also UDHR art 14 guaranteeing
everyone the right to ‘seek and enjoy asylum’.
54 See Oxfam Report, supra, note 54 at 11.
55 Ibid at 15.
56 Department of Immigration, Multicultural and Indigenous Affairs, ‘Offshore Pro-
cessing Arrangements’ Fact Sheet No.76, 2 January 2002.
57 Victorian Council for Civil Liberties Incorporated v Minister for Immigration and Multicultural
Affairs [2001] FCA 1297 (11 Sept 2001).
many of whom were Afghani nationals’.58 Within hours, Washington

accused Osama bin Laden and his Al Qaeda terrorist movement, and
the Afghani Government Taliban regime, a Muslim group and Islamic
State respectively, for the attacks. Muslims under public perception
were generally labelled ‘terrorists’ and viewed suspiciously, evaporat-
ing any sympathy the rescuees may have elicited from the Australian
public prior to 9-11. Over night, they were transformed from perse-
cuted victims of the brutal Taliban regime, to potential terrorists and
Al Qaeda members. Not surprisingly, a majority of polled Australian
respondents considered that boat people increased the risks of ter-
rorism.59 Eventually, this series of events culminating with the Pacific
Solution that significantly contributed to PM Howard’s third term in
office.
Notwithstanding the political gain, the Pacific Solution was not
without monetary cost to Canberra. To make it work, co-operating
Pacific states like PNG and Nauru were offered financial inducements
or ‘bribery’60 to influence their decision to accede to Canberra’s
request to use their territories as asylum processing points. Under
a financial aid smokescreen, Nauru was paid 15 million Australian
Dollars and PNG ten million Australian Dollars. Anthony Audoa, a
Nauru Independent MP, puts the situation in stark economic terms:
I don’t know what is behind the mentality of the Australian leaders,
but I don’t think it is right. A country so desperate with its economy,
and you try to dangle a carrot in front of them, of course, just like
a prostitute . . . if you dangle money in front of her, you think she
will not accept it. Of course she will, because she is desperate.61
In addition, Canberra also bore all financial costs including provision
of food, medicine, construction of make-shift (detention) camps, and
any other incidental costs.
In the name of fighting terrorism the Australian Government stiff-
ened its stance against asylum seekers. But it did not stop here. It
demonized them, claiming that some Iraqi boat people had thrown
their babies overboard to ‘blackmail’ Australia into granting them
asylum. Reacting to this PM Howard angrily told talkback radio:
58 See Mary Crock and Ben Saul, Future Seekers: Refugees and the Law in Australia (Sydney:
Federation Press, 2002) at 38.
59 Ibid.
60 See for instance, Kalinga Seneviratne, ‘Rights: Australia set to Back
Down on Refugee Policy’, available at Oneworld.net website at
http://www.oneworld.net/article/frontpage/10/3 (visited 23 April 2002) 1.
61 Mark Metherell and Michell Grattan, ‘Pacific Solution ‘treats nations like Prostitutes’,
available at The Sydney Morning Herald website at http://www.smh.com.au/ (visited
30 April 2002).
We don’t want people who seek to come to this country illegally to

be able to do so. I can’t comprehend how genuine refugees would
throw their children overboard.62
However, this claim has since been established to be false. Reacting to
the Tampa affair and September 11 terrorist attacks, Canberra further
pushed legislation63 through Parliament, ‘to validate the actions taken
by the Australian authorities in the course of the Tampa affair and to
radically strengthen the powers of the Australian authorities to radi-
cally strengthen the powers of the Australian authorities to intercept
and deflect potential asylum seekers’.64 Collectively this legislation
substantively amended the Migration Act, (Cth), 1958, and its Regu-
lations and created a somewhat new Asylum regime.65 For instance,
the 2001 Migration Amendment (Excision from Migration Zone) Act
removed the Australian Islands, such as Christmas and Cocos Islands,
from Australia’s migration zone. Thus, if an asylum seeker lands on
any of these Islands he or she is deemed to be outside Australian
territory for migration purposes.
B. ‘We are Overloaded’ European Argument

During the 2002 French Presidential national elections, one of
the reasons that made extreme right-wing candidate Jean Marie Le
Pen a formidable political force was the anti-immigration policy
he espoused. Just like the racist ‘white Australian policy’66 Le Pen
62 See, Bob Burton, ‘Australia: After U.N. Ruling, Government still drags its feet on
Refugees’, Inter Press Service, April 10, 2002, 1, available at Lexisnexis website at
http://www.lexisnexis.com.au (visited 9 April 2003).
63 Namely Migration Amendment (Excision from Migration Zone) Act 2001; Migration Amend-
ment (Excision from Migration Zone) (Consequential Provisions) Act, (Cth), 2001;Migration
Amendment (Excision from Migration Zone) Act, (Cth), 2001; Migration Legislation Amend-
ment Act (No. 6), (Cth), 2001; Migration Legislation Amendment Act (No. 1), (Cth), 2001;
Migration Legislation Amendment Act (No. 5), (Cth), 2001; Border Protection (Validation
and Enforcement Powers) Act, (Cth), 2001; and Migration Legislation Amendment (Judicial
Review) Act, (Cth), 2001.
64 Crock and Saul, supra, note 60 at 38.
65 For an overview of this ‘keep out’ legislation see Crock and Saul, supra, note 60 at 38–
42; U.S. Committee for Refugees, ‘Australia Sea Change: Australia’s New Approach
to Asylum Seekers’, (2002), at 35–38.
66 As the name suggests, this century old policy (1855–1958) was aimed at excluding non-
white people from Australia. Originally, it targeted Chinese immigrants but was later
extended to all ‘non-white races’. Peter E Nygh and Peter Butt, Butterworths Concise
Australian Legal Dictionary, 2ed. (Sydney: Butterworths, 1998) state, ‘after 1958, a
non-racial immigration policy was introduced: for example Migration Act (Cth) 1958,
and Pacific Island Labourers Act (Cth) 1901’ (at 459). For a summary of the evolution
of the policy see U.S. Committee for Refugees, supra, note 53 at 5. See also Mary
Crock, Immigration and Refugee Law (Sydney: Federation Press, 1998) discussing the
‘dictation test’ used to exclude non-white immigrants (at 13 to 19).
promised to immediately end immigration and to expel all immi-

grants and refugees from France.67 Although, he lost miserably to
Jacques Chirac in the final round, Le Pen caused a surprise shock by
coming second in the first round and in the process defeated polit-
ical ‘heavy weights’ such as the incumbent Prime Minister, Lionel
Jospin.68 A similar picture emerges from the Dutch elections. On 6th
May 2002, a Dutch right wing politician, Pim Fortuyn, was murdered
nine days prior to the May 15 General Elections. Notwithstanding
Fortuyn’s racist anti-migration argument that ‘Holland is full’69 polls
tipped his party, Lijst Pim Fortuyn, to ‘win up to 28 of the 150 seats’70
approximately 19% of Parliament seats and a possible place in a coali-
tion Government. In the end, his party fell short by two seats, winning
26 seats or 17% of the total votes cast.71
C. Lessons from Western State Practice

These experiences portray a disturbing attitude by traditional refugee-
receiving States in the West.72 Three facets can be drawn from this
State practice. First, use all means persuasive or otherwise to keep
IDPs or potential refugees as far away as possible from your territory
to gain political mileage or for economic reasons. The name of the
game is: do all that it takes to protect our borders from ‘invaders’
lest, ‘they take away our jobs’ or ‘we admit terrorists’. Little wonder
in the local elections in Rotterdam, a port city with a large immigrant
population, Fortuyn’s party was still able to garner 35% of the total
votes cast. Second, for those who try to enter, do not allow them to set
foot but rather, bribe third States to admit them, where humanitarian
aid will be distributed and asylum claims processed. Third, make it
clear to successful claimants that even they will not be automatically
67 See Hugh Schofield, ‘Profile: Jean-Marie Le Pen’ available at BBC News website
at http://www.bbc.co.uk (visited 9 April 2003) quoting an interview with reporters
where Le Pen asserted ‘Massive immigration has only just begun. It is the biggest
problem facing France, Europe and probably the world. We risk being submerged’.
68 See BBC News, ‘Profile: Lionel Jospin’ available at BBC News website at
http://www.bbc.co.uk (visited 9 April 2003).
69 See BBC News, ‘Obituary: Pim Fortuyn’ available at BBC News website at
http://www.bbc.co.uk (visited 9 April 2003).
70 See CNN.Com, ‘Dutch election on despite murder’ available at CNN News website at
http://www.cnn.com (visited 8 May 2002).
71 Ibid.
72 See, UNHCR, Statistical Yearbook, supra, note 7 at 62 on the number of asylum seek-
ers admitted in westernised States (1982–2001) under the 1951Refugee Convention,
both at first instance and on appeal. Comparing this trend with that of the refugee
population (at 84) and asylum applications submitted (at 60) what it is noticeable is
failure by Westernised States to respond effectively, by increasing their annual asylum
intake to absorb the growing global population of asylum seekers.
admitted into your territory. Such ‘keep-out’ measures are likely to

attract fewer political costs except for the French case, compared
to allowing asylum seekers in. A further observation may be made
with regard to the changing political climate in Western States. Pre-
viously, politicians steered clear of such anti-migration policies lest
they be branded ‘racist’ or ‘fascist’. However, these anti-immigration
sentiments are now expressed, as part of election campaign promises.
Collectively, these three examples illustrate the increased accept-
ability of racist policies within the domestic politics of Western States.
Today, the international refugee treaties have largely been globalized
considering the number of States that have ratified them.73 There-
fore, adopting deterrent measures to discourage asylum seekers from
a state goes against the grain of two fundamental tenets of interna-
tional refugee law—the right to seek asylum and the right not to
be expelled or returned to territories where an individual may face
persecution. Unfortunately, some traditional refugee-friendly devel-
oping States have based their refusal to admit asylum seekers on
Western State practices. Two examples can be cited in this regard.
First, in the wake of the genocide in Burundi and Rwanda, in 1993
and 1994 respectively, Tanzania closed its borders to the prevent entry
to hundreds of thousand of asylum seekers. Citing the US interdiction
programme preventing Haitian asylum seekers from landing onto US
soil, the then Minister of Home Affairs argued that it was a double
standard to expect weaker countries to live up to their humanitarian
obligations, while major powers did not do so where national inter-
ests dictated otherwise.74 Secondly, when Pakistan closed its borders
to thousands of Afghani asylum seekers75 fleeing American artillery
after September 11, it drew from the Australian Tampa incident. The
Pakistani leader, General Pervez Musharraf, asked, perhaps genuinely,
if a wealthy State like Australia could refuse to admit less than a
handful boat-people, why should a poor State like Pakistan already
73 As at 1 April 2003 136 States were party to both the Refugee Convention and Protocol
and 144 were party to one or both of them. See UNHCR, State Parties to the 1951
Convention Relating to the Status of Refugees and the 1967 Protocol, available at UNHCR
website http://www.unhcr.ch (visited 9 April 2003).
74 See Bonaventure Rutinwa ‘The End of Asylum? The Changing Nature of Refugee
Policies in Africa’, (2002) 1 and 2 (21) Refugee Quarterly Survey 12 at 33. Between
1993 and 1995, Tanzania, one of the Least Developed countries, refugee population
fluctuated between 565 000 and 830 000 refugees. Compare this to the United States
of America, an industrialised country, which, during the same period, hosted 620 000
and 630 000 asylum seekers. See UNHCR, Statistical Yearbook, supra note 7 at 87.
75 Approximately 200 000 asylum seekers. See UNHCR, Statistical Yearbook, supra note 7
at 91.
overburdened with refugees76 be requested to admit more?77 Conse-

quently, the UNHCR was unable to render assistance to the many
Afghani nationals were trapped in Afghanistan.78 Grace, however,
came from the ICRC, which offered food assistance, health care, water
and sanitation to the tens of thousand internally displaced Afghanis.79
IV. Inadequacy of the Existing International Framework

and Developments to Meet this
As at 1 January 2002, there were almost 20 million ‘persons of con-
cern’80 to the UNHCR. The Refugee Convention recognises that this
problem cannot be borne by a selected group of States as this would
be unduly taxing. It proposes international co-operation through the
‘burden sharing’ principle. Despite a rise in inter-State armed con-
flicts and persons seeking asylum, traditional refugee-receiving States
have refused to admit more refugees. However, those few81 fortunate
enough to be admitted into a third state receive protection and assis-
tance from that State itself or the UNHCR, as determined by domestic
legislation and international refugee treaties. The scope of refugee
rights a refugee can enjoy in a third State depends upon the num-
ber of rights a State reserved82 when becoming party to the refugee
treaties or the generosity of domestic legislation.
76 By the end of 2001 Pakistan hosted 2.2 million refugees, compared to

Australia’s ‘drop in the ocean’ figure of 21,000. See U.S. Committee for
Refugees, ‘Worldwide Refugee Information: Country Report, Pakistan, 2002,
http://www.refugees.org/world/countryrpt/scasia/pakistan.htm (visited
23/07/02) and USCR, ‘Worldwide Refugee Information: Country Report, Australia,
2002, http://www.refugees.org/world/countryrpt/easia_pacific/australia.htm
(visited 23 July 2002) respectively.
77 Pakistani leader, General Pervez Musharraf is quoted by Mark
Baker, ‘Pakistan Leader’s Swipe at Australia’s Refugee Ban’,
http://old.smh.com.au/news/0110/24/national/national4.html (visited 9 April
2003), to argue: ‘Hundreds of thousands of refugees want to cross over into Pakistan
and our dilemma is we already have about 2.5 million refugees here. You can
compare this when you think of Australia not accepting even 200 [Tampa] refugees.
So a poor country, an economically weak country like Pakistan cannot really accept
refugees over this great figure of 2.5 million.’
78 See U.S. Committee for Refugees, Country Report Pakistan, 2002,
http://www.refugees.org/world/countryrpt/scasia/pakistan.htm (visited 9 April
2003).
79 See, ICRC, The ICRC in Afghanistan, http://www.icrc.org/eng/afghanistan (visited 9
April 2003).
80 UNHCR, Statistical Yearbook, supra, supra note 7 at 12.
81 In 2001, for instance, 92 260, or 1%, of ‘persons of concern’ were resettled in
industrialised states. See UNHCR, Statistical Yearbook, supra, note 7 at 60.
82 A Reservation is a unilateral statement made by a state when signing or ratifying a
treaty, by which the it excludes or modifies the legal effect of certain provisions of
the agreement in their application to that State. See Vienna Convention on the Law of
Treaties, 23 May 1969, U.N.T.S.115 (entered in force 27 January 1980) art 2 (1) (d).
See also Nygh and Butt, supra, note 68 defining ‘reservation’ as ‘the making of some
However, IDPs do not have the benefit of their own treaty and their
welfare is heavily dependant on external ad hoc humanitarian aid.
Moreover, obstacles are often encountered in trying to get humanitar-
ian aid to IDPs, especially when the State or rebel forces refuse to allow
humanitarian aid to pass through territories they effectively control.
Unlike rebel forces, States have a legal basis for blocking humanitarian
aid by invoking the principle of State sovereignty,83 and characteris-
ing the conflict as an ‘internal matter’. Notwithstanding what may be
termed ‘illegal’ disruption of aid convoys from rebel forces, this fac-
tor cannot be ignored. The brutal murder of three UNHCR staffers in
West Timor, on 7 September 2002,84 and Mensah Kpognon, UNHCR
Head of Field Office in the Guinean town of Macenta, Guinea,85 nine
days later, are horror stories demonstrating the casualties affected by
this form of disruption. Blocking humanitarian aid exacerbates the
general suffering of IDPs.
A. State Sovereignty Principle and its Counterarguments

This section examines the argument of state sovereignty states may
raise to block access of humanitarian aid to IDPs from the UNHCR or
ICRC, and the possible counter-arguments. This is important as the
acceptance of humanitarian assistance rest on state consent.
One of the foundational UN purposes was to promote and encour-
age, ‘respect for human rights and fundamental freedoms’.86 How-
ever, the UN Charter limits this by affirming that the UN and its
member states are prohibited from ‘intervening in matters which are
essentially within the domestic jurisdiction of any State’,87 save for
actions which breach or threaten to breach international peace and
security.88 Two fears have been expressed with regard to the principle
“exception” by which a legal right is withheld or preserved’ (at 379). With regard to
refugees, art 42 of the Refugee Convention recognises this right.
83 See UN Charter art 2(7). IHL also recognises this principle via Protocol II art 3.
See also Ivan Shearer, Starke’s International Law, 11th ed. (Singapore: Butterworths,
1994) arguing this concept ‘signifies that within this territorial domain jurisdiction is
exercised by the state over persons and property to the exclusion of other states’ (at
144).
84 See UN Security Council, S.C. Res 1319 (2000) on Timor, 8 Sept 2000, S/Res/1319
(2000).
85 See, U.S. Committee for Refugees, ‘UN Refugee Aid Worker Killed in Guinea Toiled
On Despite Poor Donor Support’, available at U.S. Committee for Refugees website
at http://www.refugees.org/index.cfm (visited 24 July 2002).
86 UN Charter art 1(3).
87 Art 2(7) UN Charter states: ‘Nothing contained in this Charter shall authorize the
United Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state . . .’.
88 Ibid.
of state sovereignty.89 First, States wishing to block humanitarian assis-

tance may abuse the principle. Second, external political intervention
may be concealed as humanitarian assistance. With regard to rebel
forces and militia groups, as much as they are illegitimate in the eyes
the Government, their consent remains vital if humanitarian aid has
to pass through a territory they control or within range of attack. Joan
Fitzpatrick, in 2002, noted:
The internally displaced also have a compelling need for interna-
tional human rights protection. UNHCR’s role in protecting IDPs
still remains a daunting barrier to assuring their safety and funda-
mental rights. IDPs remain under the formal protection of their
own state, even though officials of that state may have deliberately
caused their displacement. Where the state has violated human
rights treaties or customary law in its treatment of IDPs, it is sub-
ject to international scrutiny and cannot invoke its sovereignty as
a shield.90
At least two legal counterarguments qualify assertions of state
sovereignty. The first is premised on the view that human rights are the
immutable rights of individuals’ and not purely domestic matters,91
recently affirmed by the 1993 Declaration of the United Nations World
Conference on Human Rights92 (hereafter ‘Vienna Declaration’).
Recent UN action demonstrates that the international community will
act against gross human rights violations. The UN Security Council
has invoked Chapter VII to characterise certain violations as threats
to international peace and security. Three examples may be cited.
First, after the first Gulf-war attempts by Kurds to establish their own
89 These were expressed as far back in 1977 when the two Additional Protocols to the
Geneva Conventions were drafted. The introductory paragraph to Additional Proto-
col II states: ‘The aim of the present Protocol is to extend the essential rules of the
law of armed conflicts to internal wars. The fear that the Protocol might affect State
sovereignty, prevent governments from effectively maintaining law and order within
their borders and that it might be invoked to justify outside intervention led to the
decision of the Diplomatic Conference at its fourth session to shorten and simplify
the Protocol’.
90 Joan Fitzpatrick, ed, Human Rights Protection for Refugees, Asylum-Seekers, and Inter-
nally Displaced Persons: A Guide to International Mechanisms and Procedures (New York:
Transnational Publishers, 2002) at 5.
91 This view is expressed in preamble to the following treaties: Refugee Convention, Con-
vention on the Elimination of All Forms of Discrimination Against Women and the UN
Charter.
92 UNGA/CONF.157/23 (12 July 1993). Preamble to the Vienna Convention recognized
and affirmed that ‘all human rights derive from the dignity and worth inherent in the
human person and that the human person is the central subject of human rights and
fundamental freedoms, and consequently should be the principal beneficiary and
should participate actively in the realization of these rights and freedoms’. (emphasis
added)
State in 1991 failed miserably. The Iraqi Government retaliated in the

name of ‘repressing the uprising’ leading to a massive displacement
and flow of Kurds towards the Turkish border. In response, the UN
Security Council passed Resolution 68893 condemning the repression
and insisting the Iraqi Government should ‘allow immediate access’94
of international humanitarian aid to the Kurds, denied entry into
Turkey. Secondly, during the 1994 genocide and civil war in Rwanda
French forces were authorised under Resolution 92995 to ‘implement
a temporary operation under national command and control aimed
at contributing . . . to the security and protection of displaced per-
sons, refugees and civilians in Rwanda’.96 Third, in 1996 during the
civil war in the former Zaire97 and subsequent mass internal displace-
ment, the Security Council took a proactive step toward humanitarian
intervention. It authorised under Resolution 107898 the formation of
a military force to create ‘safe corridors and temporary sanctuaries’99
to facilitate the delivery of international humanitarian aid such as
food, water, and medicine.
A second argument would regard the obligation to respect the ter-
ritorial sovereignty of other States as being subject to the principle of
abus de droit. Under this principle, the exercise of a lawful right can
become unlawful, if it involves sacrificing a more important individ-
ual or community right to a less important individual one,100 thus
justifying humanitarian aid intervention. In this regard, the basis of
humanitarian intervention, whilst recognising State sovereignty, is
to maintain global peace and security through prevention of gross
violations of human rights. Thus, Plender argues:
[A]n arbitrary refusal to permit the administration of humani-

tarian relief to [IDPs], in violation of human rights, may con-
stitute an abus de droit which cannot prevent the United Nations
93 U.N. S.C Res. 688 (1991) (adopted at the 2982nd Security Council meeting).
94 Ibid, para. 3.
95 U.N. Doc S/RES/929 (1994) (adopted at its 3392nd meeting, on 22 June 1994) on
‘establishment of a temporary multinational operation for humanitarian purposes in
Rwanda until the deployment of the expanded U.N. mission for Rwanda’. See also
U.N. Doc S/RES/925 (1994) paragraph 4 reaffirming that [United Nations Assistance
Mission to Rwanda] will: (a) Contribute to the security and protection of displaced
persons, refugees and civilians at risk [via] establishment and maintenance . . . of
secure humanitarian areas and (b) Provide security and support for the distribution
of relief supplies and humanitarian relief operations.
96 Ibid, para. 2.
97 Now Democratic Republic of Congo.
98 U.N Doc. S/RES/1078 (1996) (adopted at the 3710th meeting, on 9 Nov 1996) on
‘the situation in the Great Lakes Region’.
99 Ibid, introductory paragraph.
100 See Ruddick, supra, note 22 at 468.
Organizations from discharging the tasks conferred upon it by the

[UN] Charter.101
B. UNHCR and Internally Displacements Persons: A ‘United Nations

General Assembly Resolution’ mandate
Although the UNHCR lacks a specific legal IDP mandate, it has
nonetheless assisted several millions’102 IDPs over the years, deriving
its mandate from two sources.
First, as Ruddick103 points out, the UNHCR ‘act[s] pursuant to its
flexible, extra-statutory “good offices’‘ powers to bring IDPs within its
area of concern’. Second, various General Assembly resolutions have
conferred upon the UNHCR a selective limited mandate, to undertake
humanitarian assistance and provide protection to IDPs. Previously,
the closest the UNHCR came towards addressing the plight of IDPs
was within its general mandate of voluntary repatriation, rehabilita-
tion and resettlement of refugees.104 The precedent that enlarged
the logical extension of the UNHCR’s mandate is General Assembly
resolution 1388 (XIV) of 20 November 1959.105 This authorised the
High Commissioner to use ‘good offices’ to transmit humanitarian aid
to Chinese refugees in Hong Kong, falling without UN competence
since they could theoretically avail themselves of the protection of the
Republic of China.106 Subsequently, ‘this precedent was followed in
1961 when fugitives from Angola fled to the Democratic Republic of
Congo in such numbers that it was impossible to subject them to a
determination procedure’.107
Similarly, in 1972, the ECOSOC, within the context of volun-
tary repatriation of refugees in southern Sudan, called upon the
High Commissioner’s good offices and that of other agencies to
extend rehabilitation measures both to refugees returning from
abroad and to ‘persons displaced within the country’.108 However,
the General Assembly only distinguished IDPs as a specific class in
101 Richard Plender ‘The Legal basis of International Jurisdiction to Act with Regard to
the Internally Displaced’ (1994) 6 (3) International Journal of Refugee Law 345 at
356.
102 See UNHCR, Protecting Refugees: Questions and Answers available at UNHCR website at
http://www.unhcr.org (visited 6 Dec 2001).
103 Ruddick, supra, note 22 at 468.
104 Commonly referred to as ‘durable solutions’ to the plight refugees. See UNHCR
Statute arts. 8(c) and 9.
105 U.N.G.A. Res 1388 (XIV) adopted at the 841st plenary meeting (20 Nov 1959).
106 Plender, supra, note 103 at 347.
107 Ibid. This was effected vide UNGA Res.1673 (XVI), adopted at the 1081st plenary
meeting (18 Dec 1961).
108 UN doc. EC/1994/SCP/CRP.2 (4 May 1994).
resolution 47/105 of 1992, which acknowledged the previous efforts

the High Commissioner in responding to requests from the Secretary
General or other UN organs to meet the plight of IDPs. Subse-
quently, a 1993 resolution was adopted which allowed the UNHCR’s
Executive Committee to ‘extend on a case-by-case basis and under
specific circumstances, protection and assistance to the internally
displaced’.109
Subsequently, two UN General Assembly resolutions addressing
‘human rights and mass exoduses of peoples’110 and ‘strengthen[ing]
the coordination of humanitarian emergency assistance of the UN’111
were passed, marking significant landmarks on the road towards a spe-
cific IDP mandate. However, it is the creation of a permanent office
and appointment the IDP Representative in July 1992, which was a
major turning point in addressing the concerns of IDPs at the inter-
national plane. Representative Deng in 1995 described the terms of
reference of this Office as:
to co-operate and co-ordinate with the Department of Human-
itarian Affairs of the Secretariat, the office of the [UNHCR],
and the [ICRC], and call upon these agencies and other inter-
governmental and non-governmental organizations to continue to
co-operate with . . . and facilitate [its] tasks.112
Further, Governments are requested to continue to facilitate the tasks
and activities of the IDP Representative including, where appropri-
ate, extending invitations for country visits, in deference to state
sovereignty.
C. ICRC formal mandate for Internally Displaced Persons

States while acknowledging that ‘about 80% of the victims of armed
conflicts since 1945 have been [as a result of] non-international armed
conflicts. . .’113 amended the Geneva Conventions to bring it into con-
formity with the spirit of IHL. In 1977, Protocol II was adopted to
protect victims of ‘non-international’ armed conflicts, such as IDPs.
Previously, common Article 3 to the four Geneva Conventions that
applied to ‘persons taking no active part in the hostilities’114 addressed
minimum protective rights to IDPs, since it referred to armed conflicts
109 UNGA Res. 48/135 (20 Dec 1993).

110 A/46/721.
111 46/182.
112 Deng, supra, note 40 at 75.
113 Introductory paragraph to Additional Protocol II.
114 Art 3(1).
‘not of an international character’. Although a very short article, it

contains the most essential principles115 initially requiring each party
to a conflict to treat IDPs and hors de combat116 humanely. In addition to
collecting and caring for the sick ‘humane treatment’ it excludes:117
(a) violence to life and person, in particular murder, mutilation,
cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and
degrading treatment, rape, enforced prostitution and any
form of indecent assault;
(d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly con-
stituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples;
(e) collective punishments;
(f) acts of terrorism;
(g) slavery and slave trade in all forms;
(h) pillage; and or
(i) threats to commit any form of the foregoing acts.
In this equation, the ICRC is mandated to promote IHL and to protect
and assist victims of conflict.118 Thus, IDPs fall at the ‘core’ of the
ICRC mandate.119 This amendment through Protocol II was meant to
extend the primary rules of the law on armed conflicts to internal wars,
115 See Jean-Philippe Lavoyer ‘Refugees and Internally Displaced Persons: International
Humanitarian law and the role of the ICRC’ (1995) 304 Int’l Rev. of the Red Cross
163 at 171.
116 A person who no longer plays an active part in a combat situation. Protocol I art 41(2)
sets three tests to distinguish between hors de combat and combatants. A person is hors
de combat if he or she:
(a) is in the power of an adverse Party;
(b) clearly expresses an intention to surrender; or
(c) has been rendered unconscious or is otherwise incapacitated by wounds or sick-
ness, and therefore is incapable of defending himself;
provided that in any of these cases he abstains from any hostile act and does not
attempt to escape. (emphasis added)
117 Common art 3 and Protocol I art 4 (2). See also Denise Plattner ‘The Protection of
Displaced Persons in Non-International Armed Conflicts’ (1992) 291 Int’l Rev. of the
Red Cross 567 at 571 classifying these protections into three categories: protection
from the effects of hostilities, against abuse of power and norms concerning care and
relief services.
118 See ICRC Statute art 4 (1).
119 See address by the ICRC in the 52nd session of the Executive Committee of the High
Commissioner’s Programme, Geneva, 1–5 October 2001, available at ICRC website at
http://www.icrc.org (visited 14 Dec 2001) asserting ‘ . . . people displaced internally
as a result of conflict are at the core of ICRC’s activities’. See also Françoise Krill ‘The
ICRC’s Policy on Refugees and Internally Displaced Civilians’, (2001) 83 Int’l Rev. pf
the Red Cross 607 arguing IDPs fall at the ‘heart’ of ICRC’s mandate (at 610).
and to supplement common Article 3, which it had to be read together

with without ‘modifying its existing conditions or applications’.120
However, for Protocol II to apply to an internal armed conflict
situation four conditions should be satisfied.121 First, the conflict
should occur within the territory of one State. Secondly, it should pit
the armed forces of a State against a dissident-armed force or other
organized armed group. Third, the dissident forces or armed group
should be under a responsible command. Four, they should exercise
control over a part of the State’s territory to enable them carry out
sustained and concerted military operations. Condition one repeats an
obvious fact—that an internal war is one that occurs within a State’s
boundaries. But more importantly, it implicitly puts displaced per-
sons outside the ambit of ‘refugees’ and additionally bestows upon
their parent State a protective obligation. Conditions two and three
complement each other. It is not enough for a State to merely face
opposition from militia members. The requirement for any form of
opposition to be ‘organised’ limits the breadth of combatants the Pro-
tocol protects, since it excludes sporadic or disorganised attacks from
disgruntled forces or groups. Upon capture, such individuals will be
treated as common criminals and may be prosecuted under domestic
criminal law, unlike their Protocol counterparts who enjoy Prisoners
of War status.
It is from the third that condition four stems since only ‘orga-
nized’ groups are able to carry out ‘sustained’ and ‘concerted’ attacks,
though it is difficult to quantify this nature of attack. All cases must
be evaluated on their merits. The additional requirement for such a
group to have ‘control over part of the State’s territory’ is somewhat
outdated considering the modern combat environment. Today ter-
ritorial control does not necessarily offer a military advantage since
modern technology allows military attacks to be launched from one’s
personal computer.122 In addition to this specific mandate, common
Article 3(2), which allows the ICRC to ‘offer its services to the Parties
120 See art 1.

121 Ibid.
122 For an extended analysis of cyber-attacks see Michael N. Schmitt ‘Computer Network
Attack and the Use of Force in International Law: Thoughts on a Normative Frame-
work’ (1999) 37 Colum. J. of Trans Law 885. Schmitt, at 888, cites three examples
of cyber-attacks: ‘[First] It is no longer necessary . . . to physically destroy electrical
generation facilities to cut power to a foe’s command and control system; instead,
the computer network that drives the distribution system can be brought down to
accomplish the same result. Second, whereas the means of “attack” in centuries past
presupposed the use of kinetic force, in the twenty-first century an attack may be
nothing more than the transfer of cyber commands from one computer to others.
Third, [use a computer to] shut off a particular service or function (e.g., disrupt-
ing telecommunications) or to alter or misdirect data (e.g., unauthorised electronic
transfer or transmittal of false intelligent information)’.
to the conflict’, is a fallback provision that may also apply. Abi-Saab

argues this simply means the ICRC ‘may offer its services to an inter-
nal conflict [as well], just as the right of initiative would permit in
any situation’.123 Even so, the consent of belligerents is a crucial fac-
tor to consider. Additionally, although the kind of services offered is
unspecified, it appears to fall within the ICRC’s general umbrella of
services provided to armed conflict victims:
[M]aterial, medical and food aid . . . technical support to the

authorities . . .. Register [and] trace those who have been displaced,
try to trace those who have disappeared, arrange for the exchange
of Red Cross messages and reunite the members of dispersed fami-
lies . . . as well as act as an intermediary between the warring parties
themselves or between those parties and displaced persons so as
to facilitate contacts between them or even settle a humanitarian
problem.124
Parts III and IV of Protocol II, seeking to protect the civilian popu-
lation, outline the rights available to IDPs. Generally, they should be
safe from the dangers likely to result from military operations. IDPs
should specifically not be made ‘the object of an attack’,125 nor be
forcibly moved except for their security or ‘imperative military’ rea-
sons;126 combatants are prohibited from using starvation of IDPs as a
method of combat;127 works and installations that contain dangerous
forces upon release128 and their cultural objects and places of wor-
ship129 should not be made the subject of military attacks; wounded
or sick IDPs should have access to medical relief130 and care.131 Finally,
special protection is laid down for women and children IDPs.132
123 Rosemary Abi-Saab, ‘Human Rights and Humanitarian Law in Internal Conflicts’ in
Daniel Warner, ed., Human Rights and Humanitarian Law: The Quest for Universality
(The Hague: Martinus Nijhoff, 1997) 107 at 119.
124 Marguerite Contat Hickel ‘Protection of Internally Displaced Persons affected by
Armed Conflicts: Concept and Challenges’ (2001) 83 Int’l Rev. of the Red Cross 699
at 704.
125 Protocol I art 13.
126 Ibid, art 17.
127 Ibid, art 14.
128 Ibid, art 15. Examples include dams, dykes and nuclear electrical generating stations
provided such attacks will release dangerous forces leading to ‘severe losses’ in the
civilian population
129 Ibid, art 16.
130 Ibid, art 18(2).
131 Ibid, see generally arts. 7–12.
132 Ibid, art 4(3).
V. Guiding Principles on Internal Displacement:

Cross-Fertilization of International Refugee Law
and International Humanitarian Law
The primary reason IDPs received little international attention in the
past was because their plight was considered an internal matter. How-
ever, this view changed in the early 1990s, owing to events in the
former Yugoslavia, which elevated the issue to the international plane.
According to Plender,133 these events caused the UN to ‘examine’
the magnitude and scope of the problem and to ‘define possible solu-
tions the international community could undertake. This marked the
beginning of the road towards developing a normative and institu-
tional framework to protect IDPs with the appointment of the IDP
Representative in July 1992 and the adoption by the UN in April 1998
of the Guiding Principles on Internal Displacement134 (hereafter
‘Guiding Principles’), which the IDP Representative drafted.
The Guiding Principles are dual purposed.135 First, they seek to
‘address the specific needs of [IDPs] worldwide’. Secondly, to ‘identify
the rights and guarantees relevant to the protection of persons from
forced displacement, and to their protection and assistance during
displacement, . . . return, resettlement and integration’. Principle 2
defines IDPs from an informal perspective:
[P]ersons or groups of persons who have been forced or obliged to flee
or to leave their homes or places of habitual residence, in particular as
a result of or in order to avoid the effects of armed conflict, situa-
tions of generalized violence, violations of human rights or natural
or man-made disasters, and who have not crossed an internationally
recognized State boundary.136 (emphasis added)
Three quick observations are apt. First, since the words ‘in particu-
lar’ precede the root causes of forced migration, this demonstrates
the ‘List of Causes’ is open-ended. Second, from the usage of gen-
eral terms such as ‘generalized violence’, ‘violations of human rights’
and ‘natural or man-made disasters’ it may be inferred the IDP Rep-
resentative intended this pragmatic definition to be flexible enough
133 Plender, supra, note 103 at 351.

134 UN doc.E/CN./4/1998/53/Add.2 of 11 February 1998. Since 1995, there has been
a growing body of literature in the area of IDPs. For a general overview and evolution
of the IDP Representative’s Office and the Principles see: Simon Bagshaw ‘Internally
Displaced Persons at the Fifty-Fourth Session of the United Nations Commission on
Human Rights’ (1998) 10(3) International Journal of Refugee Law 548; Deng, supra,
note 40; Lavoyer, supra, note 117; Plender, supra, note 103.
135 See preamble to the Principles paragraph 1.
136 Preamble to paragraph 2. See also Principle 6 prohibiting arbitrary displacement
arising from collective punishment, unjustified development projects and ‘ethnic
cleansing’ policies.
to capture unforeseen contingencies. Finally, it notes the obvious that

IDPs are located within their national borders.
These Guiding Principles represent a mix of three fields of inter-
national law. They reiterate norms derived from international human
rights law, international humanitarian law and international refugee
law.137 In terms of scope, they seek to guide four classes of persons,
the IDP Representative, States, all other authorities, groups and per-
sons, IGOs and NGOs.138 Once again, a catch-all phrase, ‘all other’
is adopted to cater for unforeseen events. These Guiding Principles
recognise that if the IDP problem is to be solved or ameliorated, every
world citizen needs to be involved. Thus, it requests:
all authorities and international actors [to] respect and ensure respect
for their obligations under international law, including human
rights and humanitarian law, in all circumstances, so as to prevent
and avoid conditions that might lead to displacement of persons.139
(emphasis added)
In terms of rights, the Guiding Principles outline rights before,
during, and after displacement, as well as those applicable when IDPs
return, or during resettlement and reintegration. They reiterate that
IDPs should enjoy the same rights and freedoms as other nationals
of that country, bearing in mind that in fact they are still nationals of
that State.140 In particular, they should not be discriminated against
in the enjoyment of any rights and freedoms on the ground that
they are internally displaced.141 The special needs of unaccompanied
minors, expectant mothers, mothers with young children, persons
with disabilities and elderly persons should be considered.142 Dur-
ing displacement, rights to life, liberty and security of the person,
movement and freedom, asylum, education, protection of property
and recognition before the law should be respected.143 Relief and
137 For instance, inherent right to life (principle 10); right to life and liberty (principle
12); freedom of movement (principle 14); right of asylum (principle 15); right to be
informed of the fate and whereabouts of missing relatives (principle 16); recognition
before the law (principle 18); access to medical facilities by the sick and wounded
(principle 19); protection from direct military attacks (principle 21); humanitar-
ian assistance (section IV); voluntary repatriation, resettlement and reintegration
(section V).
138 Preamble paragraph 3(a)–(d) inclusive.
139 Under Principle 5. A similar provision is found in the Geneva law, see particularly
Convention IV art 49 of and Protocol II art 17.
140 Principle 1(1).
141 Ibid. See also Principle 22. Principle 4 outlines the grounds of discrimination to
include race, sex, colour, religion, age, political opinion, disability, legal or social
status or on any other similar criteria.
142 Principle 4(2).
143 See section III generally.
humanitarian assistance should also be allowed to reach IDPs144 and

after conflict, they should be allowed to return voluntarily to the places
from which they fled, resettle and reintegrate.145
At face value, the Guiding Principles bestow upon IDPs an impres-
sive package of protective measures. However, these are non-legally
binding guidelines. Moreover, as Principle 2(2) states:
These Principles shall not be interpreted as restricting, modifying
or impairing the provisions of any international human rights or
international humanitarian law instrument or rights of any inter-
national humanitarian law instrument or rights granted to persons
under domestic law.
Since these Guiding Principles constitute ‘soft law’,146 they only apply
domestically if expressly incorporated into the municipal legal frame-
work. This means that the Guiding Principles per se can neither bestow
rights nor impose duties unless adopted as a matter of domestic law,
as was the case with Burundi147 and Angola.148
VI. Conclusion
This article examined the overlapping formal and informal mandates
of the ICRC and UNHCR with respect to IDPs and analyses how, at the
international plane, IDPs are no longer classified in the same category
as refugees but treated as a distinct vulnerable group. Generally, the
mandates of the UNHCR and ICRC can be said to differ, at least in
principle. ICRC has a flexible mandate that allows it to offer protection
and assistance to both IDPs and cross-border refugees. Incontrast,
the UNHCR’s mandate is more restrictively defined although it has
informally rendered protection and assistance to ‘several millions’ of
IDPs. However, practice indicates that the UNHCR cannot act on
its own initiative with respect to IDPs and that its ‘good offices’ role
is a passive one, contingent upon a request that it acts from other
144 Principles 24–27.

145 Principles 28–30.
146 Harris, supra, note 21 at 65 describes ‘soft-law’ to consist of ‘documents that are
not legally binding upon states (and hence not directly enforceable in courts and
tribunals) but that nonetheless may have an impact upon international relations,
and, ultimately, international law’.
147 See, Conselho de Ministros, Decreto No.1/01, Normas Sobre o reassentamento das
populações des locados, Dairo da Republica, l’Série-No. 1, 5 January 2001, quoted
by Walter Kalin ‘Flight in times of War’, (2001) 83 Int. Rev. of the Red Cross 629 at
648, footnote 34.
148 See, Protocol relatif à la création d’un cadre permanent de concertation pour la
protection des personnes déplacées, 7 February 2001, quoted by Kalin, ibid, at 648,
footnote 34.
UN agencies. In comparison, the assistance offered by the UNHCR

is more permanent both in terms of material assistance and offering
‘durable solutions’, such as resettlement. On the other hand, the
ICRC generally offers temporary emergency relief and assistance.149
Nevertheless, there are special areas of overlap within the informal
mandates of these agencies. First, both provide material assistance,
food, water and medical aid to refugees and IDPs. Secondly, in addi-
tion to this assistance, both are involved in the legal protection of
displaced individuals. Third, while trying to keep families as intact as
possible, both agencies offer tracing facilities for family reunification
purposes. Fourth, both issue protected refugees with travel and iden-
tification documents whilst they are in third States. Fifth, both pay
special attention to the needs of unaccompanied minors. And lastly,
IHL and international refugee law inevitably converge in the Guiding
Principles, which contain the current international statement of prin-
ciples to be applied as basic standards for the protection and assistance
of IDPs.
These Guiding Principles are meant to influence how States and
other interested parties deal with IDPs, although to have legal effect
the Guiding Principles need to be domestically enacted. Nevertheless,
within their short period of existence they have achieved tremen-
dous levels of success in terms of being adopted, published, and
applied. Kalin notes that important global institutions such as ‘the
CHR, ECOSOC, Commission and UN[GA] have adopted Resolutions
taking note of the Principles and of the IDP Representative’s inten-
tion to use them in dialogues with governments, intergovernmental
bodies and NGOs’.150
Following the ‘dissemination call’, positive steps have been adopted
towards this end by regional organizations in Europe, Africa and
America, individual Governments and NGOs. More specifically, the
Organization of American States, has hailed the Guiding Principles
as ‘the most comprehensive restatement of norms applicable to the
internally displaced’ which ‘will provide authoritative guidance to the
Commission on how the law should be interpreted and applied dur-
ing all phases of displacement’.151 In Europe, the Organization for
Security and Cooperation in Europe, has expressed support for and
149 See Vitit Muntarbhorn ‘Protection and Assistance for Refugees in Armed Conflicts
and Internal Disturbances’ (1988) 265 Int’l Rev. of the Red Cross 351 stating ‘Red
Cross protection-cum-assistance is more transitory by nature, since it is conceived in
terms of emergency relief, usually in the form of material assistance and immediate
physical relief’ (at 365).
150 Kalin, supra, note 149 at 647.
151 Ibid at 647.
begun to disseminate the Guiding Principles to its field staff,152 as well

as co-sponsored some workshops153 that promote the Guiding Princi-
ples. Similarly, the African Union has formally expressed appreciation
of the Principles and several AU-sponsored seminars have emphasised
their importance to Africa.154
At the national level, States such as Austria, Switzerland and Sweden
have reacted positively. Bagshaw, in 1998, noted:
Austria . . . referred to them as becoming a tool for addressing

the protection and assistance needs of [IDPs] as well as con-
tributing to the prevention of internal displacement in the future.
Switzerland stated that the[y] constituted an important document
and called upon all those concerned with the problem of inter-
nal displacement to implement the[m] with a view to improving
the situation. . . . Sweden, speaking on behalf of Nordic coun-
tries welcomed [them] . . . and called for their wide dissemination
among Governments, UN agencies, international and regional
organisations and NGOs.155
Some States currently faced with the IDP problem, such as Angola
and Burundi, have accepted the authoritative character of the Guid-
ing Principles by incorporating them into their domestic laws and
policies. NGOs have also undertaken to widely disseminate the Prin-
ciples and some have organised workshops and meetings to discuss
how best to implement these.156 This includes the ICRC, UNHCR,
World Food Programme, United Nations Children’s Fund, Norwe-
gian Refugee Council, U.S. Committee for Refugees and International
Organization for Migration. Although, all these efforts contribute
towards giving the Guiding Principles some ‘international standing’,
it will take a while before these become part of binding international
law. Meanwhile it remains important for the ICRC and UNHCR to
continue to cooperate and coordinate with respect to their IDP and
refugee mandate, to avoid duplicated roles and services. Examples
of bilateral co-operation include the Guiding Principles and Working
Procedures that were agreed upon, in May 2001, with respect to the
152 See Robert Cohen, Simon Bagshaw and Vladamir Shlolnikov, Background Memorandum
of the Regional Workshop on Internal Displacement in the South Caucasus, Tbilisi, Georgia
(May 10-12 2000) 3.
153 For instance the Regional Workshop on Internal Displacement in the South Caucasus,
Tbilisi, Georgia, May 10-12, 2000.
154 See Cohen, Bagshaw and Shlolnikov, supra, note 154 at 3.
155 Bagshaw, supra, note 136 at 550.
156 Ibid at 550-551. On specific examples see Cohen, Bagshaw and Shlolnikov supra, note
154 at 3.
‘care and protection’157 of unaccompanied children in Kosovo; high-

level annual meetings between the two agencies where they share views
on ‘ethical and operational topics’158 ; and the participation of ICRC
legal experts in UNHCRs’ Global Consultations on International Pro-
tection.159 More recently in May 2002, these organisations discussed
the IDP situation in Afghanistan and the need to ‘uphold international
law systems’ in the aftermath of 9-11.160 Through these means, both
agencies can improve their field operations and assistance programs.
For a permanent solution to be found for the plight facing war
victims, more is needed than UN Resolutions or other types of legal
or humanitarian intervention. One cannot take comfort in Henry
Dunant’s words, ‘we cannot always avoid wars’. Hence, the search
for peace and tranquillity should be a continuing pragmatic process
that calls for a consideration of the root causes civil war and internal
conflict, which generates this problem. In this regard, on-going peace
talks hosted by the Kenyan government between the Sudanese Govern-
ment and rebel forces in the south, and the civil war between factional
groups in Somalia, are practical examples. With peace, two aims are
likely to be achieved. First, the prevention of future mass displacement
and movement of people, and second, secure environments that may
promote voluntary repatriation and resettlement. Although achieving
total peace is not a possibility, for every conflict diffused by peaceful
settlement, this alleviates the horrors that war otherwise causes.
157 Official Statement of the ICRC at the UN General Assembly, 56th session, Plenary,
New York, 26 November 2001 available at the ICRC website at http://www.icrc.org/
(visited 27 May 2003).
158 Official Statement of the ICRC to the Executive Committee of the UNHCR’s Pro-
gramme, available at the ICRC website at http://www.icrc.org/ (visited 27 May
2003).
159 Ibid.
160 See Executive Committee of the High Commissioner’s Programme, EC/52/Sc’INF.2
at 4, paras 23 to 24.

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Singapore Journal of International & Comparative Law

Refugees and Internally Displaced Persons: Examining

world’.4 Without specifically mentioning IDPs, the United Nations

his country on a temporary or permanent basis . . . [The] need

8 Deborah Perluss and Joan F. Hartman ‘Temporary Refuge: Emergence of a Custom-

The UN was established primarily to protect and safeguard all

national borders and equally susceptible to conflict and human rights

II. Changing Nature of the Refugee Problem:

contained provisions that only related to refugees whose situation

A. From Cross-border Refugees to Attempts at Protecting

as a result of events occurring before 1 January 1951, and owing to

The temporal and geographical limitations were written into the

26 Refugee Convention arts. 1A(2) and 1B(1).

acknowledged. Second, the major root causes of this displacement

persons or groups of persons who have been forced or obliged to

The IDP Representative’s definition is similar to the ECOSOC one.

B. ‘Protection’ within the Ambit of UNHCR and ICRC operations

. . . “to protect’‘ implies preserving victims of conflicts who are in

40 See Note by the Secretary General, ‘Internally Displaced Persons’, UN doc.

abuses of power to which they may be exposed, defending them

The second draws upon a general reading of Refugee Treaties, and

III. Domestic Politics and Asylum: From Admission to

A. Interception and Deflection Policies: The Australian case

illegal migration50 or ‘queue jumpers’.51 Further, even those found

50 See Department of Immigration, Multicultural and Indigenous Affairs, ‘Offshore

many of whom were Afghani nationals’.58 Within hours, Washington

We don’t want people who seek to come to this country illegally to

B. ‘We are Overloaded’ European Argument

promised to immediately end immigration and to expel all immi-

C. Lessons from Western State Practice

admitted into your territory. Such ‘keep-out’ measures are likely to

overburdened with refugees76 be requested to admit more?77 Conse-

IV. Inadequacy of the Existing International Framework

76 By the end of 2001 Pakistan hosted 2.2 million refugees, compared to

A. State Sovereignty Principle and its Counterarguments

of state sovereignty.89 First, States wishing to block humanitarian assis-

State in 1991 failed miserably. The Iraqi Government retaliated in the

[A]n arbitrary refusal to permit the administration of humani-

Organizations from discharging the tasks conferred upon it by the

B. UNHCR and Internally Displacements Persons: A ‘United Nations

resolution 47/105 of 1992, which acknowledged the previous efforts

C. ICRC formal mandate for Internally Displaced Persons

109 UNGA Res. 48/135 (20 Dec 1993).

‘not of an international character’. Although a very short article, it

and to supplement common Article 3, which it had to be read together

120 See art 1.

to the conflict’, is a fallback provision that may also apply. Abi-Saab

[M]aterial, medical and food aid . . . technical support to the

V. Guiding Principles on Internal Displacement:

133 Plender, supra, note 103 at 351.

to capture unforeseen contingencies. Finally, it notes the obvious that

humanitarian assistance should also be allowed to reach IDPs144 and

144 Principles 24–27.

UN agencies. In comparison, the assistance offered by the UNHCR

begun to disseminate the Guiding Principles to its field staff,152 as well

Austria . . . referred to them as becoming a tool for addressing

‘care and protection’157 of unaccompanied children in Kosovo; high-

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