In these first years of the 21st century, it is not unusual to find hundreds, even thousands, of humanitarian workers providing material aid and protection to people caught up in internal conflicts and strife within their own countries. Dispatched by international agencies, non-governmental organizations and donor governments, humanitarian field staff, sometimes joined by peacekeeping contingents, are a constant reminder that the international community has begun to assume a degree of responsibility when governments fail to provide for the security and well being of their populations in humanitarian emergencies.
This emerging international responsibility to protect and assist persons within their own countries reflects new and evolving concepts of sovereignty. For much of the 20th century, traditional notions of sovereignty prohibited an international role in most internal situations. To be sure, since the 1950s the International Committee of the Red Cross (ICRC) had a special mandate to protect civilians in armed conflicts, and beginning in the 1970s could explicitly act in non-international armed conflicts. The United Nations High Commissioner for Refugees (UNHCR) also began in the 1970s on a select basis to assist people displaced inside their own countries. But basically sovereignty and non-interference in internal affairs were strictly applied, as set forth in Article 2 (7) of the UN Charter. It was not until the end of the Cold War that the international community began in a concerted way to try to assist and protect people uprooted and at risk inside their own countries. Internally displaced persons (IDPs), those forced from their homes by civil war, generalized violence and human rights violations who remain within their own countries, became a leading entry point for international humanitarian action. As former UN Secretary-General Javier Perez de Cuellar observed in 1991, “We are clearly witnessing what is probably an irresistible shift in public attitudes towards the belief that the defense of the oppressed in the name of morality should prevail over frontiers and legal documents.”[i]
But the humanitarian imperative of saving lives had to be reconciled with the most cardinal principle of international affairs, respect for non-interference in internal affairs. Whereas the humanitarian imperative calls for immediate aid to people whose survival is threatened, respect for state sovereignty can mean leaving large numbers to die should their governments refuse entry to the international community. The United Nations Charter did not resolve this dilemma, calling as it did for both the promotion of human rights internationally (Arts. 55-6) and respect for non-interference in internal affairs (Art. 2 (7)). A 1991 General Assembly resolution on humanitarian assistance in emergencies failed in this respect, as well. Resolution 42/182 said that aid should be provided “with the consent of the affected country,” although it added “in principle on the basis of an appeal by the affected country [emphasis added],”[ii] suggesting that there may be times when the UN would take the initiative. For UN Secretary-General Kofi Annan, the problem of internal displacement constituted a test case for a new balance that was needed between respect for sovereignty and acceptance of humanitarian action. The uprooting of people within their own countries, he wrote, “created an unprecedented challenge for the international community: to find ways to respond to what is essentially an internal crisis.”[iii]
A Shift in Attention from Refugees to Internally Displaced Persons
The explosion of civil wars following the Cold War brought into view large numbers of persons uprooted inside their own countries. When first counted in 1982, 1.2 million could be found in 11 countries, whereas by 1995, the total number of IDPs had surged to 20 to 25 million.[iv] Most had little or no access to food, medicine and shelter and were often found to have higher mortality rates and higher malnutrition rates than others in the population. Being uprooted from their homes, livelihoods and communities, they were also particularly vulnerable to sexual abuse, forced relocations, and other manner of violence. Although their destitute condition and need for international protection made it imperative to support them, the international system created after the Second World War focused almost exclusively on refugees — those who fled their countries to escape persecution. UNHCR, created in 1950, and the 1951 Refugee Convention provided international protection to those outside their countries deprived of the protection of their governments. Largely in deference to traditional notions of sovereignty, the system did not extend to people uprooted inside their countries.
That the system was inadequate to the humanitarian crises of the 1990s quickly became evident when IDPs began to outnumber refugees two to one or more in most emergencies. Indeed, Sadako Ogata, the UN High Commissioner for Refugees from 1990 to 2000 took the decision to expand the “operational coverage” of UNHCR in different internal war situations to include IDPs and other affected populations, especially when they were mixed in with refugees. In her memoirs, she posed the following question to herself: “Should we follow the legal dictate of not exercising our mandate inside the border and thereby refrain from helping those prevented from crossing or should we stand more on realistic humanitarian grounds and extend whatever support we could?” Ogata chose “to take the realistic humanitarian course.” [v] This meant that UNHCR, despite its refugee mandate, would protect displaced Kurds inside Iraq in the safe haven created by a US-led coalition, and in the former Yugoslavia became the lead agency on the ground for refugees, IDPs and other affected populations.
The UN General Assembly and Security Council backed UNHCR’s actions, reinforced by the warning of UN Emergency Relief Coordinator Sergio Vieira de Mello that helping refugees but not others in an emergency could produce “second class victims” and spawn more conflict.[vi] Indeed, Security Council resolutions, beginning in 1991, began to demand access to internally displaced persons and other affected populations, and to authorize the establishment of relief corridors and cross-border operations to reach people in need. In some cases the Council even authorized the use of force to ensure the delivery of relief and provide protection to IDPs and other affected populations, such as in northern Iraq, Somalia and Bosnia.[vii]
But it was not the humanitarian imperative alone that underpinned the decisions of the international community to become involved in countries of origin. There was also the fact that millions of people caught up in wars in their own countries without the basic necessities of life could disrupt the stability of these countries and undermine regional and international security.[viii] Whether in Bosnia in the former Yugoslavia, Rwanda in the Great Lakes region of Africa, or in Sierra Leone in West Africa, conflict and internal displacement could be seen to be spilling over borders, overwhelming neighboring countries with refugees and helping to ignite regional wars. A growing worldwide inhospitality to refugees also brought with it greater willingness to help people uprooted within their own countries.
As IDPs moved to center stage in international debates about how to protect persons caught up in internal conflicts, the Secretary-General in 1992 appointed a Representative on Internally Displaced Persons, Francis M. Deng, to monitor displacement situations worldwide and identify ways to promote better protection and assistance for them. But states, especially in the Third World, were wary of this mandate, making it essential for the Representative to develop a conceptual framework to reconcile the tension between a state’s jurisdiction over its population and international involvement in situations of internal displacement.[ix]
Sovereignty as Responsibility
Deng’s answer to situations of internal displacement was the concept of “sovereignty as responsibility,” which effectively recast sovereignty as a form of state responsibility to one’s displaced population. If a state did not want international involvement with its IDPs, it should provide for the security and well being of its population.[x] States after all have the primary responsibility to provide IDPs with life-supporting protection and assistance, but if they are unable to do so, they are expected to request and accept outside offers of aid. If they refuse, or deliberately obstruct access, and put large numbers at risk, the international community has a right and even a responsibility to assert its concern and become involved. International involvement can range from diplomatic dialogue to negotiation of access, to establishing humanitarian presence, to political pressure or sanctions, and in exceptional cases as a last resort, to military action. In his dialogues with governments, Deng repeatedly pointed out that no state claming legitimacy could quarrel with its commitment to protect all of its citizens. Sovereignty must mean accountability to one’s population and also to the international community in the form of compliance with international human rights and humanitarian agreements.
The human rights and humanitarian communities contributed substantially to this concept. For decades, human rights advocates had been championing the view that the rights of people transcend frontiers and that the international community must hold governments to account when they fail to meet their obligations. Indeed, since the UN’s adoption of the Universal Declaration of Human Rights in 1948 and subsequent human rights treaties, an evolution in thinking began to take place from a strictly state-centered system in which sovereignty was absolute to one in which the behavior of states toward their own citizens became a matter of international concern and scrutiny. Systematic monitoring, reporting and exposure of human rights violations began in the 1970s, reinforced by the initiatives of governments, in particular the United States under President Jimmy Carter, who declared that “no member of the United Nations can claim that mistreatment of its citizens is solely its own business.”[xi]
By the 1980s humanitarian organizations were also insisting that when governments deny access to populations at risk and deliberately subject them to starvation and other abuses, the international community must find ways to reach those in need. Whereas in 1988, the international community stood by and watched while 250,000 Sudanese starved to death because their government denied international access, soon thereafter UN agencies used hard diplomatic bargaining to persuade Sudan’s government and rebel forces to accept Operation Lifeline Sudan.[xii] Humanitarian organizations in particular became emboldened after the Cold War when access became easier and possibilities opened up to cross borders and reach populations at risk. A right to humanitarian assistance and even a right to intervention (‘le droit d’ingerence’) were proposed although the latter term initiated by France was considered too bold and as a result was frequently challenged as violating the principle of non-interference in internal affairs. The concept of sovereignty as responsibility proved a far more persuasive packaging of the idea that sovereignty had limits: if it were used to justify neglect or mistreatment of one’s population, steps by the international community would be in order. Put another way, “states are entitled to full sovereignty so long as they abide by the norms established by the international community.”[xiii]
The Guiding Principles on Internal Displacement
The Guiding Principles on Internal Displacement, the first international standards for IDPs, [xiv] have as their foundation the concept of sovereignty as responsibility. Introduced by Deng into the United Nations in 1998, they assert that primary responsibility for the displaced rests with their governments, but that the international community has an important role to play when governments fail to discharge these responsibilities. The Principles make clear that offers of international aid cannot be regarded “as interference in a State’s internal affairs.” Indeed, states have a duty to accept international aid, are not “arbitrarily” to withhold consent and must grant “rapid and unimpeded access” to IDPs. The Principles further assert that IDPs have certain rights and claims when it comes to protection and assistance. They have the right to request and receive protection and humanitarian aid from their governments, but that when national authorities are “unable or unwilling” to provide the required aid, international organizations have the right to offer their services. The Principles also call upon humanitarian organizations to “give due regard to the protection needs and human rights” of IDPs and “take appropriate measures in this regard.” Such action goes beyond the provision of food, medicine and shelter to enabling international organizations to play a role in protecting the physical security of the displaced from violations of their human rights. A 2000 UN policy paper, adopted by the Inter-Agency Standing Committee (composed of all the major humanitarian organizations) reinforced this international protection role of IDPs as set forth in the Guiding Principles.[xv]
Although not a legally binding document like a treaty, the Guiding Principles in a relatively short period of time have gained considerable international recognition and standing. UN resolutions regularly refer to them as an “important tool” and “standard,” and the World Summit Outcome document of 2005, signed by 192 heads of state and government, recognize them as “an important international framework for the protection of internally displaced persons.”[xvi] Regional organizations use them as an authoritative document, UN humanitarian staff rely upon them as a framework, and a small but growing number of governments have begun to incorporate the Principles into their national policies and laws on internal displacement.[xvii] Currently, the African Union is developing a legally binding instrument based on the Guiding Principles while the member states of the International Conference on the Great Lakes Region have already adopted a legally binding Protocol on internally displaced persons that obliges states to accept the Guiding Principles by incorporating them into domestic law. That sovereignty is increasingly being viewed as a form of responsibility towards one’s citizens, especially one’s displaced population, is reflected in this growing application of the Guiding Principles.
The Responsibility to Protect
The concept of sovereignty as responsibility also became the foundation for the new landmark concept – the “responsibility to protect” (R2P). In 2004, the UN Secretary-General’s High-level Panel on Threats, Challenges and Change affirmed that,
Whatever perceptions may have prevailed when the Westphalian system first gave rise to the notion of State sovereignty, today it clearly carries with it the obligation of a State to protect the welfare of its own people and meet its obligations to the wider international community. But history teaches us all too clearly that it cannot be assumed that every State will always be able, or willing, to meet its responsibilities to protect its own people and avoid harming its neighbours. And in those circumstances, the principles of collective security mean that some portion of those responsibilities should be taken up by the international community…[xviii]
The World Summit Outcome document formally endorsed the responsibility to protect in 2005. The document asserts that states are expected first and foremost to protect their own populations, but if they are unwilling or unable to do so, and their citizens are subjected to genocide, ethnic cleansing, war crimes and crimes against humanity, then responsibility shifts to the international community, which is expected to take collective action.[xix]
The document’s articulation of R2P is a clear affirmation that sovereignty cannot acceptably serve as a barrier behind which governments can commit crimes against their population. The concept instead reflects the view that when large numbers of people are in desperate need of the basic necessities of life, their situation goes beyond being an internal matter and becomes one in which the international community must play a role. Indeed, concepts of security have broadened to include “human security” in addition to state security,[xx] reaffirming former Secretary-General’s Annan’s view that while respect for sovereignty offers vital protection to small and weak states, “it should not be a shield for crimes against humanity.”[xxi]
There is, however, no international consensus on how to apply R2P. In fact, R2P is often mistakenly equated with military intervention without sufficient thought given to the diplomatic, humanitarian, political and economic measures that need to precede more robust action. In an effort to give greater attention to the non-military steps that could be taken, the Secretary-General appointed in 2004 a Special Adviser on the Prevention of Genocide and Mass Atrocities and more recently announced his intention to appoint a Special Adviser on the Responsibility to Protect. Both advisers are intended to work together in raising international awareness to the need for prevention and protection of civilians and in mapping out the strategies to take prior to coercive action.
In cases where military action is needed, there is as yet no agreed upon criteria for when to use force in humanitarian or human rights emergencies; nor does a ready UN capacity for enforcement exist. Whereas some insist that the responsibility to protect must be decided with Security Council approval, others maintain that if the Security Council fails to act, humanitarian action can be undertaken by coalitions of the willing who will secure international approval thereafter (as in the case of Kosovo). The World Summit Outcome document doesn’t indicate what road to take if the Security Council fails to act. Nor does it create structures to help implement R2P, such as “strategic reserves that can be deployed rapidly” as called for by Annan.[xxii] In the World Summit Outcome document, heads of government urged only the “further development of proposals” to create such capacity. They did, however, ask regional organizations to “consider the option” of placing their military capacity under UN standby arrangements and endorsed a standing police capacity, which if formed, could prove valuable for protection.[xxiii]
Over the years, some influential members of the Group of 77 have strongly opposed international humanitarian action on the grounds that it could be a cover for the interference of powerful countries in the affairs of weaker states. Egypt, Sudan and India even initially raised objections to the Guiding Principles on Internal Displacement on grounds of sovereignty,[xxiv] although in the end they voted for the World Summit Outcome document and other UN resolutions supporting the Principles and R2P. China has regularly insisted that no state should interfere in the internal affairs of another state in the name of humanitarian action.[xxv] In the case of Darfur, China has regularly weakened Security Council resolutions despite the genocidal acts of Sudan’s government against its African tribes.[xxvi]
Indeed, the case of Darfur brings out the difficulties of making R2P operational. Bowing to international pressure, Sudan allowed in more than 14,000 humanitarian workers (about 1,000 are international staff) to assist the more than two million IDPs in camps. It also has allowed in more than 7,000 African Union troops and police not only to monitor the cease-fire but also to provide a modicum of protection for the IDPs. Further, Sudan’s government agreed to the terms of the 2006 Darfur Peace Agreement that, although not in force because of rebel objections, authorized African Union troops to create buffer zones around the IDP camps, accompany displaced persons to areas of return as well as perform other protection functions. But at the same time Sudan has made it extremely difficult and even dangerous for humanitarian staff to operate in Darfur, has failed to disarm Janjaweed militias responsible for attacking non-Arab villagers and IDPs, and has taken all possible steps to thwart the African Union mission from protecting IDPs.[xxvii]
The UN Security Council has been hard pressed to resolve the crisis. Its resolution 1706 of August 31, 2006 did take the bold step of authorizing the deployment of a UN force to Darfur of 20,000 military and police, under Chapter VII of the UN Charter (which is mandatory) and empowered it to “use all necessary means” to “protect civilians under threat of physical violence,” “prevent attacks and threats against civilians” and protect humanitarian workers. However, the same resolution, at China’s insistence, also “invite[d] the consent” of the government of Sudan. This clause largely emasculated the Chapter VII requirement (UN staff dubbed it “Chapter 6 and a half”), and emboldened Sudan to reject the UN deployment. For more than ten months, as a result, the UN Secretary-General and numerous governments sought to persuade Sudan to accept an international force or at least a hybrid UN/AU force. In June 2007, the Sudanese government finally relented, agreeing to a 26,000 strong hybrid force (with mostly African troops and under African operational command), although it remains to be seen whether it will actually allow in large numbers of troops and police and not interfere with the Chapter VII protection mandate given to the force by Resolution 1769 of July 31, 2007.
Increasingly, actions on Darfur are being framed in terms of the responsibility to protect. Security Council Resolution 1706 was the first to cite and apply the R2P concept to a specific situation while Resolution 1769 emphasizes the importance of protecting civilians and humanitarian workers as well. It bears noting that many sub-Saharan African governments strongly defended the R2P concept in the case of Darfur. In the UN Security Council, Ghana objected to asking for Khartoum’s consent,[xxviii] on the grounds that African governments under the AU charter have an obligation to intervene in the affairs of another state when its people are at risk.[xxix] Liberia’s President called upon the UN to exercise Chapter VII authority in Darfur because “the world must not allow a second Rwanda to happen.”[xxx]
But international divisions in the Security Council have made strong collective action on Darfur difficult to achieve. In the face of objections from China, Russia and the Arab League, as well as US preoccupation with Iraq, there is no coalition of governments ready to stand firmly behind R2P and ensure that Resolution 1769 is effectively carried out. Although China did in the end press Sudan to accept the hybrid force, any reference to sanctions was removed from the text. Nor is there a UN rapid reaction military force or standby police capacity to carry R2P forward. It could thus take more than half a year for all the troops in the hybrid force to be assembled, adequately equipped and on the ground in Darfur. Without international enforcement machinery, these and other Security Council resolutions, such as number 1296 that speaks of creating security zones and safe corridors and identifying situations where IDPs may be endangered in camps,[xxxi] could remain largely unenforced. International concepts of protection outpace the ability to implement them, leading many to turn to prevention as a more effective first step. At the same time, efforts are underway to identify the specific steps needed to implement R2P.[xxxii]
Working with Sovereignty
Although Sudan is often presented as the R2P worst “test case,” with governments like Myanmar and Zimbabwe following close behind,[xxxiii] a broader and longer-term perspective is needed. A growing number of governments are now ready to cooperate with the international community in addressing conflict and displacement in their countries. In fact, most countries today allow some form of access to their displaced populations, and some even welcome international engagement, including peacekeepers and humanitarian workers.[xxxiv] The Representative of the UN Secretary-General on the Human Rights of IDPs, Walter Kalin, has more invitations from governments to visit their countries than he can manage. His reports on Turkey, Azerbaijan, Georgia, Uganda, Ivory Coast, Colombia, Nepal and others reveal that a number of these governments have been working closely with the UN to develop policies and laws on internal displacement and set up institutions to enforce them.[xxxv] The government of Turkey, for example, which for decades refused entry to the international community, invited the Representative to visit on several occasions and has been cooperating with international organizations in developing plans for the return and reintegration of its displaced population. The government of Georgia has developed an IDP policy in line with the Representative’s recommendations.
International humanitarian organizations have also been working to create a more predictable international system for IDPs based on the assumption that these organizations have a right and responsibility to work in countries beset by conflict and displacement. In 2006, the UN Emergency Relief Coordinator, who serves as focal point for coordinating assistance and protection to IDPs, introduced a new system, the ‘cluster approach’ to increase international accountability to IDPs.[xxxvi] Under this arrangement, specific responsibilities for IDPs are assigned to international agencies with expertise in these areas. Thus, UNHCR has become the lead for IDPs when it comes to protection, camp management and emergency shelter while UNDP has assumed responsibility for early recovery and other organizations have taken the lead in health, sanitation, nutrition and other sectors. Although China, Russia and governments in the G-77 sensitive to international involvement with internally displaced populations have at times questioned the new system, UNHCR as the main protection lead believes it can remain committed to greater involvement with IDPs.[xxxvii] UN peacekeeping forces also are being increasingly called upon, in emergencies around the world, to protect internally displaced persons and other civilian populations, accompany humanitarian aid convoys, and help refugees and IDPs return home safely.[xxxviii] Regional organizations, moreover, like the African Union and European Union are working to develop rapid response capabilities for emergencies.
The end of the twentieth century has witnessed a shift in thinking about sovereignty and non-interference in internal affairs. For centuries, both were considered stabilizing elements in international relations. But when exercised in absolute terms, they were seen to produce holocausts and other humanitarian and human rights disasters. While continuing to recognize sovereignty as the basis for the international system, the new thinking emphasizes that when governments fail in their obligation to provide for the security and well being of their populations, and large numbers are at risk, the international community has the right, even the responsibility, to become involved.
The power of these new ideas is evident. States today can expect limits on their sovereignty when they blatantly refuse to live up to their humanitarian obligations. International involvement with internally displaced persons has become an increasingly accepted course of action and most governments do not regard people at risk inside their countries as strictly a national problem. In fact, internally displaced persons and other people in acute need of humanitarian assistance and protection are increasingly seen as having certain rights and claims on the international community when their governments do not act responsibly or where there is a disintegration of the state. Greater humanitarian and peacekeeping presences in the field in emergency situations reflect this, bolstered by documents like the Guiding Principles on Internal Displacement and the World Summit Outcome document’s R2P. Nonetheless, concepts of sovereignty as responsibility and the responsibility to protect remain far ahead of international willingness and capacity to enforce them. Assuring action by the international community to assist and protect civilians inside countries and hold their governments to account will remain a major challenge for the twenty-first century.
[i] Javier Perez de Cuellar, as quoted in Roberta Cohen and Francis M. Deng, Masses in Flight: The Global Crisis of Internal Displacement, Brookings Institution, 1998, p. 1.
[ii] United Nations General Assembly, “Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations,” A/RES/46/182, 19 December 1991.
[iii] Kofi Annan, Preface, in Cohen and Deng, Masses in Flight, p. xix.
[iv] Cohen & Deng, Masses in Flight, p. 3.
[v] Sadako Ogata, The Turbulent Decade, W.W. Norton & Company, 2005, pp. 19, 25, 3, 170.
[vi] Sergio Vieira de Mello, Briefing before the UN Security Council, Inter-Office Memorandum, New York, 3 June 1999.
[vii] See Walter Kalin and Robert K. Goldman, “Legal Framework,” in Cohen & Deng, Masses in Flight