International Legal Instruments
|Sudanese children in Darfur, Sudan, 2009|
Photo: Alina Potts
In this section you will gain a basic understanding of the international legal instruments relevant for situations of forced migration.
International Human Rights Laws
In general, international human rights laws such as The Universal Declaration of Human Rights, the Convention on the Elimination of all forms of Discrimination against Women and the Convention on the Rights of the Child are relevant to forced migrants.
These instruments will be covered in detail in the Columbia University Human Rights Portal which should be referred to for further detail.
Here, in the Forced Migration Module, we will look primarily at international humanitarian law and refugee law which are specifically relevant to forced migration and health.
International Humanitarian Law (IHL)
The Geneva Conventions
Establishment of the Geneva Conventions was inspired by International Red Cross founder Henri Dunant’s pamphlet “A Memory of Solferino,” which described his shock at the lack of care given to wounded soldiers at the battle of Solferino, Italy, in 1859. IHL is sometimes described as “the rules of war”.
The first Geneva Convention was adopted in 1864 and provided for protection of sick and wounded soldiers on the field of battle.
The second convention, formulated in 1868, extended those protections to sailors wounded in sea battles.
Photo: Lindsay Stark
The third convention, in 1929, protected prisoners of war. It legislated that prisoners of war were not criminals and should be treated humanely and released at the end of hostilities.
The fourth convention, ratified in 1949, rewrote, expanded, and replaced the language of the first three conventions. It brought civilians in times of war under the protection of international laws that prohibit murder, torture, hostage taking, and extra-judicial sentencing and executions.
The 1977 Geneva Convention Protocols
In 1977, two protocols were added to the Geneva Conventions of 1949, extending protection to victims of conflicts not formally declared as wars and to victims of civil conflict within a state. In each category, protection extends to the medical, religious, and humanitarian aid personnel helping affected groups.
As of June 1993, 178 states were signatories to the 1949 Conventions, with 61 ratifications.
The 1996 and 1998 Geneva Convention Tribunals
Gender-specific provisions of humanitarian law were strengthened by recent affirmations of rape as a specific war crime and as an element of other international crimes. In 1996, the Tribunal in the former Yugoslavia stated that organized rape and other sexual offenses could constitute crimes against humanity and, in 1998, the Rwanda Tribunal found that rapes and sexual assaults committed during the conflict could constitute genocide if they were committed as part of an intentional desire to destroy a protected group. In 2008 the United Nations Security Council officially recognized rape as war crime, recognizing it as an issue of peace and security and something which should be monitored and prosecuted.
Some rules of IHL as specified by the Geneva Conventions
|Internally Displaced Eritrean, 1990 |
Photo: Hiram A. Ruiz
Persons hors de combat (outside of combat/ non-combatant) and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.
It is forbidden to kill or injure an enemy who surrenders or who is hors de combat. The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the Red Cross or the Red Crescent is the sign of such protection and must be respected.
Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he/she has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.
The 1951 Refugee Convention
The process of developing a body of international law, conventions and guidelines to protect refugees began in the early part of the 20th century under the League of Nations, the predecessor of the United Nations. It culminated on 28 July 1951, when a special UN conference approved the Convention relating to the Status of Refugees. On December 4, 1952 Denmark became the first state to ratify the Convention. Since then, a total of 147 states have acceded to one or both of the UN instruments. This first instrument was limited to protecting mainly European refugees in the aftermath of World War II, but a 1967 Protocol expanded the scope of the Convention as the problem of displacement spread around the world.
The Convention clearly spells out who is a refugee and the kind of legal protection, social rights and other assistance he or she should receive from states in the document. It also defines a refugee’s obligations to host governments and certain categories of persons, such as war criminals, who do not qualify for refugee status. The Convention defines a refugee as: “A person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.”
Guiding principles for IDP
The 1998 Guiding Principles on Internal Displacement
Completed in 1998 by a team of international legal experts led by the noted Sudanese scholar, Dr Francis Deng, and under the direction of the UN Secretary-General, the Guiding Principles (GPs) represent the first international standards for internally displaced persons (IDPs). The GPs comprise 30 principles, which define the rights of IDPs and the obligation of both governments and rebel groups to protect them. Although the Guiding Principles do not constitute a binding legal instrument like a treaty, the 30 principles do, according to Deng, “address all phases of displacement—providing protection against arbitrary displacement, offering a basis for protection and assistance during displacement, and setting forth guarantees for safe return, resettlement and reintegration.”