Voluntary Repatriation in Public International Law: Concepts and Contents

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(1)Introduction The objective of the present volume is to illustrate the importance and complexity of the issue of security and of the role and responsibilities of the military in humanitarian action today. Since the early 1990s humanitarian action has to take place more and more in zones of violent conflict. Also, in many of the political and military crises, civilians are not just incidental victims, but the direct targets of the violence. As a result, security and the role of the military have become major issues not only for the populations concerned, but also for humanitarian workers and organizations, and for the international community at large. In all these conflicts the toll on civilians is particularly high: in terms of the number of killed, maimed or wounded, the thousands and millions who are driven from their homes and places of habitual living – refugees and internally displaced – as well as in the destruction of their often meager sources of livelihood. Given the nature of these conflicts the civilian population would be bound to suffer under all circumstances. However, in many of the most violent current and recent situations the civilian population has not been suffering from “collateral damage” – but has been the very target of the governmental or non-governmental violence and persecution. The objective may be ethnic, religious, nationalist revenge or retribution, or simple greed. By now “ethnic cleansing” and “genocide” have entered our daily vocabulary and these terms seem to have lost much of their power to provoke shock among the unaffected. Recent events have also shown that humanitarian workers themselves are becoming targets of attacks by various militant groups. These attacks represent a threat not only for the humanitarian organizations but also for the populations in need of both protection and relief. The question arises whether and what is the role of the military to provide security for humanitarian action. Also, the role of the military in relation to humanitarian action and to humanitarian workers has to be considered in situations where international force is used to deal with the perpetrators of humanitarian crises. Main Themes The present issue of the Refugee Survey Quarterly contains the papers presented at the 9th Annual Humanitarian Conference organized by Webster University, Geneva on Humanitarian Action, Security and the Military in April 2004. As in all previous years, the conference was held under the auspices of the Government of Geneva and benefited from the.

(2) 2. Introduction. encouragement and participation of UNHCR and ICRC and other international organizations. The objective of the conference was to highlight the multiple aspects of an important and topical international humanitarian issue through presentations by experts from a broad range of organizations and backgrounds. The program aimed at illustrating the complexity of the tasks and both the distinct responsibilities and the possible convergence of objectives of those who are trying to provide relief and protection to the victims of major humanitarian crises. As in previous years, because of the importance of the subject and because of the wealth of experience, the reflections and different points of view of the speakers, the conference proved to be of interest to both humanitarian actors and others specialists and to a broader interested public. This series of humanitarian conferences of Webster University was started in 1996. The program of each conference followed a broadly similar pattern. For each of these events, a major specific theme was selected, one that was of direct relevance for humanitarian action and for the humanitarian cause and of special interest at the time of the conference. At the same time, each year, through the wealth and variety of the experience and reflections of the speakers, the broader context of domestic and international order and the nature and origins of what came to be known as “humanitarian crises”, crises which in fact have been the violent manifestations of crises of domestic and international political order, was also addressed. While the speakers were reporting and reflecting on humanitarian action – the attempts to bring protection and relief to victims of war and persecution – they were also exploring the causes of the political cancers that have produced millions and millions of victims throughout the world. Thus, time and again they drew attention not only to the crimes committed by the perpetrators – governments, groups and individuals – and to the urgent need to deal with them, but also to the “sins of omission” by the socalled “international community”, i.e. the unwillingness or failure of governments and public in the countries not directly involved in the crises to help prevent the cancers and to help repair the defective political systems in the crisis countries and regions. Perhaps more than any of the previous editions, the subject and the program of the 2004 conference brought together the general and the specific: on the one hand, the security of the beneficiaries of humanitarian action and of the humanitarian workers themselves, and on the other hand, the role and responsibility of those who have the global mandate to protect us, that is the State, and the instrument of that power to protect, which is the military. Thus the program addressed the issue of the safety of the populations and the role of the military in some of the major humanitarian emergencies of recent years (e.g. Great Lakes region, former Yugoslavia, Afghanistan, Iraq, Israel and Palestine), the question of security for humanitarian work-.

(3) Refugee Survey Quarterly, Vol. 23, No. 4, 2004. 3. ers and the issue of growing threats to humanitarian action, the legal, moral and political dimension of the role of the military, and what can be done to assure that humanitarian relief and protection will be provided, where needed, also in the future. The papers in the present volume are of various length and detail. Some of them are more academic while others reflect the authors’ and their organizations’ direct experience. Despite the broad range of issues dealt with, not all aspects of the topic could be covered. Yet, given the authors’ experience and background, even the specialist readers will gain new insights and an in-depth view of the complexity of this important topic. In fact, in the light of the current developments in Iraq, Israel and Palestine or in Sudan, as several times in earlier years, once more the subject matter turned out to be even more topical than at the time of the planning of the program. This adds to the urgency of the issues raised and of the conclusions and the message of the authors and participants. The papers are, however, far from being just a series of reflections on current events. They show that the problems did not start last year and that major and sustained efforts will have to be undertaken to reverse the trend. The first part of the present volume contains the four keynote speeches presented at the conference: The Responsibility to Protect, by Cornelio Sommaruga, Former President of the International Committee of the Red Cross, The Lessons of Rwanda, by General (Ret.) Roméo Dallaire, Former Commander of the United Nations troops in Rwanda, Is There a Future for Independent Humanitarian Action?, by Pierre Krähenbühl, Director of Operations of the ICRC, and With or Against? Humanitarian Agencies and Coalition Counter-Insurgency, Hugo Slim, Chief Scholar, Centre for Humanitarian Dialogue, Geneva. The rest of papers is organized around the six main themes of the conference: new forms of conflict and violence, the legal, moral and political aspects of the role of the military in humanitarian crises, examples of the role of the military in major humanitarian crises, the security of humanitarian workers, international organizations, NGOs and the military and an interrogation on providing humanitarian relief and protection in the future. On many of the issues there was a broad consensus among the speakers and participants. Given the complexity of the topic, however, no attempt is made here to draw a set of specific conclusions or recommendations. Thus, the rest of this Introduction gives a broad overview of some the main issues dealt with and of the sense of the conference on these topics. New Threats, Political Order and Humanitarian Action The present volume raises a series of interrogations about the use of force – both the legitimate recourse to force in the broad sense of the word and the use of force by the perpetrators, and the links between domestic and.

(4) 4. Introduction. international political order and the recourse to force today and in the years ahead. Throughout history random violence, persecution, massive violations of basic human rights have been associated either with excessive and abusive use of state power, or with the absence of sufficient state power to deter and sanction individual terrorists and criminals, small or large nonstate groups committing such crimes. The military can be a key factor in protecting against such acts and it can be a terrible tool for committing these crimes. The 20th century saw plentiful examples of both types of violence and massive violations of human rights. By the totalitarian and authoritarian states which had been the true scourge of humanity during decades and by groups of all kinds which have either destroyed states and the framework of protection and justice that they had provided or that took advantage of the weakness or disintegration of old or new states to carry out their criminal activities. Since the end of the cold war, clearly the second category of conflicts, implying massive violations of human rights, has been the principal source of destruction and victims, although oppressive and abusive “strong” governments have not all disappeared and persecution of their own citizens by their own governments remained a source of concern both for the oppressed and for the international community at large. Today the world is facing the emergence of new forms of warfare and the spreading of “unconventional” forms of organized violence that have been known before, but which are gaining momentum and are undermining human security and presenting new challenges for humanitarian action throughout the world. In this context, the central and most widespread phenomenon is the persistence of non-state belligerent groups, and the continued emergence of new ones. Humanitarian action is increasingly taking place in the midst of violent conflicts, which differ from traditional wars between nation states. These so-called “internal conflicts”, include murderous confrontations between government forces and various militias, fighting among various factions, urban warfare between government forces (police and army) and organized or irregular guerillas, as well terrorist attacks against random (and predominantly civilian) targets. The range of the “new warfare” can be illustrated with two contrasting examples. At the one end of the spectrum is the “high-tech” war, with minimum casualties for the side possessing and using the latest technological tools (short of weapons of mass destruction). The effectiveness of this kind of warfare was demonstrated in the campaign of liberation of Kuwait, in the Kosovo war and in the attack on Iraq in 2003. At the other end, we find the contemporary versions of terrorist and guerilla warfare, that range from individual suicide bombers to attacks by larger groups aiming not only at destruction and intimidation but also at territorial occupation and control. The changing nature of warfare includes: asymmetrical conflicts, ter-.

(5) Refugee Survey Quarterly, Vol. 23, No. 4, 2004. 5. rorism, the targeting of civilians, sexual violence as a tool of war, the potential use of weapons of mass destruction by terrorists, and above all systematic propaganda and psychological warfare that create the conditions where people turn their backs on the minimum rules of humanity. This conditioning may create as much the “lonely warrior” in the shape of today’s suicide terrorists, as well as the “mass psychosis” responsible for ethnic cleansing and genocide within communities that had been living together for generations. Technology plays a role in the new threats. But as throughout history, political factors and changes and the seizing and wielding of power by reckless and evil leaders are the principal sources of current and future dangers. Humanitarian Action and Security In today’s violent crises, there is a growing threat to civilians and to humanitarian workers. The international community has been systematically underestimating the gravity of this threat as has been shown, to name only a few examples, in Srebrenica, in Rwanda or in the last eighteen months in Iraq. A relatively new stage in the spiral of moral and political depredation has been reached with the current increasingly widespread phenomenon of exposing your “own side” (almost exclusively civilians) to actual or potential reprisals by the opposing side (often the government) in order to demonstrate the “justness” of your cause and to justify your own murderous conduct. In today’s conflicts civilians have to fear both “friend” and “foe”. The need to respect international humanitarian law and the basic rules of humanitarian assistance is widely proclaimed. Yet international humanitarian law is being systematically violated and where humanitarian protection and assistance are most urgent – humanitarians are exposed to deliberate threats and attacks. The issue of the security of humanitarian actors was dramatically brought home by the murder of the United Nations’ delegate to Iraq and his colleagues. The attack on Sergio Veira de Mello and his headquarters signaled a major escalation in the targeting of humanitarians by armed groups. All reports about the attack on the UN Headquarters seem to confirm that the danger of an attack was clearly underestimated both by the UN team in Iraq and their superiors in New York. This grave error of judgment about the nature of the threat in Iraq not only cost the life of several dedicated humanitarians but it also effectively undermined the involvement of the United Nations in the search of a solution to the situation in Iraq and the work also of other humanitarian actors in that war-torn country. The objective of such attacks is twofold, as was also illustrated in Baghdad in August 2003. The first one is to demonstrate the “strength” of the attackers and to intimidate both their adversaries and the humanitarians and especially civil society. The principal aim of terrorist attacks is not.

(6) 6. Introduction. to harm or frighten the military, but the civilian population, and particularly those who might “collaborate” with the “enemy”. The second is to bring maximum disruption of civilian life with the minimum amount of resources. Sabotaging humanitarian action which aims at providing basic services for civilians, is part of this strategy. The targeting of humanitarians and thus making humanitarian action difficult or even impossible has been rightly included in the list of “crimes against humanity”. Yet, it is the cheapest and most expedient way to fight against civilians – to deny their right even to a semblance of normalcy and often to their very survival. Targeting humanitarian actors is also the weapon of choice of those who fight against women and children. This strategy seems to be working: what has most effectively weakened the efforts of trying to bring peace to Iraq are not the attacks against the Coalition forces, but the disruption of basic services and the ability of the insurgents to impose a guerilla warfare with a high rate of civilian casualties. Respecting Humanitarian Law: The Responsibility of Governments One of the positive developments in recent years has been the renewed emphasis on individual responsibility for the respect of international humanitarian law. The special tribunals on Former Yugoslavia and on Rwanda created by the United Nations and the new International Criminal Court are expressions of this trend. All these judicial innovations serve the purpose not only of the punishment of those who are found guilty of crimes against humanity, but they also have the objective to act as a deterrent against committing such crimes, to send a message to potential perpetrators. While violations of human rights and humanitarian rules are committed “on the ground”, it is the top of the national hierarchy that has to provide the principal deterrence and bulwark against such acts. It is not enough not to encourage criminal behavior – it is also essential to positively require the respect of humanitarian law. The danger of any ambiguity in this context has been amply illustrated by the quandary of the US forces in Iraq. The cases of torture and sadism against prisoners have done extensive damage to the reputation of the American military. This damage has been compounded by the hesitations and the lack of understanding shown at the highest political levels in the United States for the importance of the scrupulous respect for international humanitarian law: its importance especially for a country that started the war to defeat a regime which had been widely condemned for its systematic violations of human rights. The more or less open speculation whether international humanitarian law applied or did not apply to Iraq, Afghanistan, to American forces, to Guantanamo, etc. contributed to a widespread impression that the United States was questioning international humanitarian law and it was.

(7) Refugee Survey Quarterly, Vol. 23, No. 4, 2004. 7. contemplating a selective application of its rules. The frequent derogatory comments about the International Criminal Court at the highest levels of the American government (even more than the non-ratification of the Rome Treaty) did not help to create the impression that the United States remained firm against violations. This impression – whether it corresponded to actual practice or not – created considerable damage for the American military. It affected its morale, an essential factor for an army engaged in war, and it probably also affected its security on the ground. Most importantly, however, it also affected its credibility vis-à-vis the Iraqi population and thus its ability to carry out its principal mission in Iraq, i.e. to bring peace and security to the country. Without the trust of the Iraqi people this mission cannot succeed. Humanitarian Action and Responsibility to Protect. the. Role. of. the. Military:. The. In order to deal effectively with the multiple challenges of humanitarian crises, the last fifteen years have seen an expansion of different forms of peacekeeping missions in most cases under the aegis of the United Nations. In some cases these missions have had positive results, but there have been some spectacular failures. The reasons for the failures include: the contrasts between the complexity of the situations on the ground and the “mission statements” defined to take into account the political constraints of the various governments directly and indirectly involved; the lack of sufficient resources – material as well as human; the lack of commitment by states (and by the public at large) to pay the price of dealing with dangerous situations and with the perpetrators at times when their countries are not directly threatened. One of the paradoxes of the last decade has been that while there has been a worldwide concern about humanitarian crises (and an outpouring of humanitarian assistance), the public (and as a result the governments) has been reluctant to take risks in dealing with the perpetrators. This undermines greatly the credibility of peacekeeping operations and their effectiveness to deter or stop systematic crimes against humanity. It has been pointed out that the reluctance to incur casualties – in great powers as well as in other countries – in a humanitarian cause, seems to put the security of the professional soldiers (the peacekeepers) above the security of the victims and of the humanitarian workers. The issue of security has to do with the security of the civilian population, with the security of the humanitarian actors and with the security of the military and the security to be provided by the military. Today there is a legitimate concern that in many cases the security of the military receives more attention than the security of unarmed civilians and humanitarian actors, whom the military is expected to protect. The reluctance of governments that make up the “international com-.

(8) 8. Introduction. munity” outside the crises areas (and of their general electorate) to recognize and to assume the serious nature of the security risks in today’s conflict zones, has been one of the principal factors leading to the employment of private security forces to assume the protection of diplomatic missions, civilian operations of all categories, including reconstruction activities, and of course, also humanitarian relief and protection. This privatization of the military, a subject discussed in the present volume, raises both practical issues and questions of principle. It is clear that when it is being used to provide security for basic economic and social activities, they represent a “second best”. In fact, the need for the private security services is to a large extent due to the unwillingness or the inability of the international community (and this means not just governments, but first and foremost public opinion) to provide an international public security force to fulfill the tasks that are now increasingly fulfilled by private security services. To condemn these private services – who also risk their lives – and to ask for their elimination without at the same time replacing them with equivalent public security forces, is a form of hypocrisy at the expense of those to be protected, and ultimately of the civilian population of the country suffering from the violence. In a way the title of the first keynote speech, The Responsibility to Protect (referring to the title of an important recent report on this subject) described the central, common theme of the conference: the responsibility of the international community as a whole and of individual states to protect the actual or potential victims of organized violence and persecution – whether by states and their agents or by non-state groups. Faced with systematic and grave violations of human rights and of humanitarian obligations, the international community has a responsibility to protect the actual or potential victims – even against their own governments – if necessary also through the use of force. The military’s role is to protect when other means of protection not requiring the recourse to force are ineffective or have been exhausted. The traditional task of the military is the protection of the country’s own population and territory against outside forces, outside threats. However, both in theory and in practice, the scope of the protected has increasingly also included the citizens of other countries. The case is similar with humanitarian action and protection. Governments and volunteers provide protection and assistance to their citizens or fellow citizens. The essence of international humanitarian action is providing relief and protection to the citizens of other countries, individuals and groups who are often the victims of their own fellow citizens’ and/or of their own governments’ persecution and criminal behavior. Humanitarian crises require various types of responses: on the one hand humanitarian protection and assistance, and on the other hand, prevention and deterrence, intervention to deter and to stop the violence, sanctioning the perpetrators at the level of states, groups and individuals. Those to be protected and assisted are the victims of the use of force. The.

(9) Refugee Survey Quarterly, Vol. 23, No. 4, 2004. 9. military can be an important source of the security of humanitarian action. Humanitarian actors and the military are, however, on the opposite sides of a dividing line. One of the fundamental principles of humanitarian action is to maintain this separation. It is essential to keep in mind the global nature of “humanitarian crises” and at the same time to respect the division of tasks and responsibilities between humanitarian actors and the military. Humanitarian action aims at helping and protecting the victims of conflict and persecution. This is true for all categories of humanitarian actors and mandates: for the ICRC and the other components of the Red Cross and Red Crescent Movement, for UNHCR and other members of the United Nations family of organizations, for other international organizations, for all the (national and international) NGOs, as well as for direct humanitarian action by national governments. Humanitarian action is the responsibility of humanitarian organizations and humanitarian workers: this includes both relief and (legal) protection. However, protection against physical attacks – of civilians and of the humanitarians – is not a civilian task, it is not the role of the humanitarians. This is the role of the military. There is room for logistical cooperation between humanitarian actors and the military in certain situations. However, to the question: is there a future for independent and neutral humanitarian action – the general answer of the speakers was: there is a need and there has to be a future. Humanitarian action should not be absorbed by the military and there must be no confusion between the military and the humanitarians. This distinction remains essential – both for respecting humanitarian principles and for practical reasons for the security of humanitarian actors. Today it is less and less certain that no armed group or military force will ever be a threat to humanitarian actors and that under all circumstances they will be sufficiently protected by their status and impartiality. Yet, humanitarians should not have to withdraw because of targeting by the perpetrators whose objective is the increased suffering and dependence of the victims. The forced withdrawal of humanitarians under violence or threat of violence leads is the worst outcome, giving up the chance to protect and assist the victims. As it is important that the humanitarians should not have to abandon the field under threat of violence (hence the need to accept or even require effective protection in well-defined circumstances), it is also important, however, that the military’s involvement with providing security should not lead to a squeezing out of their responsibilities and tasks. Thus there are times when humanitarian actors and humanitarian action as such require protection. This, however, should not imply confusion between the military protecting humanitarian action and the military assuming the role of the humanitarians. Independent, neutral and impartial humanitarians should not be replaced by “military humanitarians”. Those who expect humanitarian actors or private security services to.

(10) 10. Introduction. be a substitute for political or military action aimed at dealing with the perpetrators are not only deluding the victims and the general public, but they also put the humanitarian workers at risk and increase the plight of the victims. To respond effectively we need both cooperation and a division of tasks – between humanitarian organizations, including the NGOs, the military, and governments. Thus, the role of the military in the humanitarian context can be summed up in the following four points: 1. respecting international humanitarian law and humanitarian actors; 2. in case of need providing logistical support for humanitarian actors; 3. providing security for humanitarian actors where needed; and 4. dealing with the perpetrators (humanitarian intervention). Threatening or attacking humanitarians is becoming part of the psychological warfare of the perpetrators. However, humanitarian action must not be turned into a propaganda or public relations exercise to counter this phenomenon. There has to be cooperation and even convergence between the governments and the military, on the one hand, and humanitarian actors, on the other hand, but there must be no confusion – neither in the minds of the victims and the perpetrators, nor in the minds and strategies of the political and security actors (in particular the military) and of the humanitarian actors – about the respective roles of the military and of humanitarian organizations.. Otto Hieronymi and Catherine Currat Webster University, Geneva.

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