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Published online by Cambridge University Press: 13 January 2010
This article examines the mandate to protect and assist refugees in armed conflicts and internal disturbances. It is a modest attempt to clarify the web of overlapping roles and mandates of humanitarian bodies, in particular the International Red Cross and Red Crescent Movement (“the Movement”) and the Office of the United Nations High Commissioner for Refugees (UNHCR). It purports to re-assess the evolution of their mandate and its extension. On the one hand, there is a need to define concrete principles, based on past and present practice, for humanitarian action. On the other, there must be sufficient leeway for flexibility and pragmatism in situations for which there is no comprehensive prognosis. The article concludes by demonstrating the interdependence and complementarity of humanitarian organizations which have to proffer protection and assistance where no other body can act.
1 For general reading, see Coles, G. J. L., “The Protection of Refugees in Armed Conflict and Internal Disturbance, paper submitted to the VIIIth Round Table on Current Problems of International Humanitarian Law and Red Cross Symposium, San Remo, 09 1982 Google Scholar; Pictet, J., Humanitarian Law and Protection of War Victims, Geneva: Henry Dunant Institute, 1975, especially pp. 115–38Google Scholar; Blondel, J.-L., “Assistance to protected persons”, International Review of the Red Cross, No. 260, 09–10 1987, pp. 451–468 CrossRefGoogle Scholar.
2 “The ICRC, the League and the Report on the Re-Appraisal of the Role of the Red Cross”, International Review of the Red Cross, from 03–04 1978 to 01–02 1979, pp. 1–72; 19Google Scholar. Footnote 1 on the same page develops the observation as follows: “In a broader context, one might say that ‘protection’ also includes developing, publicising and ensuring application and respect for international humanitarian law.”
3 An example of how the role of the UNHCR may be extended from providing material assistance to cover legal protection can be seen in the case of Thailand. In various agreements between Thailand and the UNHCR in 1975, the term “assistance” was used in relation to the role of the UNHCR in Thailand. There was no express mention of the protection aspects in these agreements. However, from the outset, there has been a section of the UNHCR dealing with protection issues in Thailand. Protection furnished by the UNHCR has encompassed a wide range of matters, including protection against forced return, protection against physical abuses in camps, provision of legal aid where displaced persons are prosecuted for illegal entry, and arrest of those who perpetrate crimes against asylum-seekers, e.g., pirates.
4 See Compendium of Basic Reference Texts on the International Red Cross, the International Committee of the Red Cross and the League of Red Cross Societies, Geneva: ICRC, 1982 Google Scholar, as amended by “Statutes and Rules of Procedure of the International Red Cross and Red Crescent Movement”, International Review of the Red Cross, No. 256, 01–02 1987, pp. 1–39 Google Scholar.
5 There are four 1949 Geneva Conventions:
— the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
— the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
— the Third Geneva Convention Relative to the Treatment of Prisoners of War.
— the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
For text, see The Geneva Conventions of 1949, August 12, reprint, Geneva: ICRC, 1983.Google Scholar
6 For text, see Protocols additional to the Geneva Conventions of 12 August 1949, Geneva: ICRC, 1977.Google Scholar
7 See further Twenty-fifth International Conference of the Red Cross, Geneva, 1986 Google Scholar: “Resolutions of the International Conference and of the Council of Delegates”, International Review of the Red Cross, No. 255, 11–12 1986, pp. 1–58.Google Scholar
8 “Statutes and Rules of Procedure of the International Red Cross and Red Crescent Movement”, op. cit., note 4, p. 11.Google Scholar
9 Ibid.
10 Ibid.
11 Ibid., p.13.
12 Compendium of Basic Reference Texts on the International Red Cross, the International Committee of the Red Cross and the League of Red Cross Societies, op. cit., note 4, pp. 29–36.Google Scholar
13 Op. cit., note 8, pp. 31–3; 39–40. (Resolutions XXI and XXVI).
14 See further “Twenty-fourth International Conference of the Red Cross, Manila, 1981: Resolutions and Decisions of the International Conference and the Council of Delegates”, International Review of the Red Cross, No. 225, 12–12 1981, pp. 318–357.Google Scholar
15 Ibid. Point 1 of the Statement of Policy provides that:
“The Red Cross should at all times be ready to assist and to protect refugees, displaced persons and returnees, when such victims are considered as protected persons under the Fourth Geneva Convention of 1949, or when they are considered as refugees under article 73 of the 1977 Protocol I additional to the Geneva Conventions of 1949, or in conformity with the Statutes of the International Red Cross, especially when they cannot, in fact, benefit from any other protection or assistance, as in some cases of internally displaced persons.”
16 Ibid. Point 3 provides that:
“Assistance from the Red Cross should at all times take due account of the comparable needs of the local population in the areas in which refugees, displaced persons and returnees are accommodated.…”
17 Ibid. Point 3 states further that:
“Since Red Cross relief programmes are essentially of an emergency character, they should be phased out as soon as other organizations are in a position to provide the aid required.”
18 Op. cit., note 5.
19 Op. cit., note 6.
20 Pictet, J., Commentary on the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva: ICRC, 1958, p. 264.Google Scholar
21 The English version of the text uses the term “may”. The French version uses the term “entreprendra”. The latter seems more forceful than the former, but the difference may be unintentional.
22 See further Muntarbhorn, V., “Transfrontier and Internal Displacement of People”, Amity International: Bulletin of the International Law Association of Thailand, Vol. 2(1) (1986), pp. 28–48.Google Scholar
23 Abi Saab, G., “The Implementation of Humanitarian Law” in Cassesse, A. (ed.), The New Humanitarian Law of Armed Conflict, Napoli: Editoriale Scientifica, pp. 331–46.Google Scholar
24 Collection of International Instruments concerning Refugees, Geneva: UNHCR, 1979, pp. 3–9.Google Scholar
25 Ibid., pp. 10–39.
26 Ibid., pp. 40–4.
27 See further Holborn, L. W., Refugees: A Problem of Our Time. The Work of UNHCR 1951–1972 (2 Vols.), Metuchen, NJ: Scarecrow, 1975, Vol. 1 Google Scholar; Jaeger, G., Status of International Protection of Refugees, HCR/120/24/80 (1980), p. 18.Google Scholar
28 See further V. Muntarbhorn, Shadowplay: The Legal Status of Refugees in Eight Asian Countries, Chapters 2–4, forthcoming.
29 McNamara, D., “Determination of the Status of Refugees — Evolution of Definition”, Proceedings of the Symposium on the Promotion, Dissemination and Teaching of Fundamental Human Rights of Refugees, Tokyo, December 1981, Geneva: UNHCR, 1982, p. 76–8.Google Scholar
30 Ibid., p.77.
31 Op. cit., note 24, pp. 193–200.
32 Ibid., Article I (2).
33 Report of the Working Group on Current Problems in the International Protection of Refugees and Displaced Persons in Asia, San Remo: International Institute of Humanitarian Law, 1981.Google Scholar
34 Conclusions on the International Protection of Refugees, Geneva: UNHCR, 1980.Google Scholar
35 Declaración de Cartagena 1984, Geneva: UNHCR, 1985.Google Scholar
36 Report of the UNHCR, Official Records of the General Assembly, Thirty-fourth Session, Supplement No. 12 (A/34/12), New York: UN, 1979, paras. 197–200.Google Scholar
37 UNHCR Activities financed by Voluntary Funds: Report for 1985–6 and Proposed Programmes and Budget for 1987, UN Doc. A/AC.96/677 (1986), Part III, pp. 11–12.Google Scholar
38 Ibid., pp. 29–31.
39 Muntarbhorn, V., “Asylum-seekers at Sea and Piracy in the Gulf of Thailand”, Revue Beige de Droit International, Vol. 2 (1981–2), pp. 481–508 Google Scholar, and Resolution V of the Twenty-fourth International Conference of the Red Cross, op. cit., note 14, p. 7.
40 Annual Report 1986, Geneva: ICRC, 1987, pp. 53–7.Google Scholar
41 Op. cit., note 14, p. 25.
42 Op. cit., note 34.