Address by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the Conference on Humanitarian Intervention, Sovereignty and the Future of International Society, Dartmouth College, 18 May 1992

It is a great privilege and pleasure for me to be invited to present the keynote address on Humanitarian Intervention, Sovereignty and the Future of International Society. These issues are very topical at a time when recurring humanitarian emergencies challenge the desirability and necessity of subjecting the relief of human suffering to national boundaries and to the consent of governments who are themselves often the perpetrators of misery.

This Conference is a timely effort to shed more light on this burning topic. For my part, I would like to approach the subject from the perspective of refugees and displaced persons, and share with you the experience of my Office in this field. I would like to cover three areas:

Firstly, the increased need today for international humanitarian action on behalf of nationals in their own countries;secondly, the constraints which national sovereignty on the one hand, and declining State power on the other, create for the delivery of international protection and assistance in such situations, and thirdly, the modalities which have been developed or are evolving for overcoming these problems. Finally, I would like to share with you some ideas on how a more effective humanitarian strategy could be developed.

Traditionally, international protection and assistance of refugees have studiously respected the bounds of national sovereignty. A refugee did not become the object of international concern until after he had crossed his national boundaries, and the interest of the international community ceased as soon as he returned to his country of origin or became a naturalised citizen of his country of asylum. Today, this situation is no longer entirely correct, because of the changed nature of the refugee problem. If we look at large-scale displacements in the post Cold War era, we see four major new characteristics:

The first is that displacement is the product of vicious internal conflicts, rooted in nationalistic, ethnic and religious hatred, which the demise of communism has revived. Africa, which has long been the scene of ethnic strife and civil war, has now exploded into vicious tribal warfare. Resurgent nationalism has raised its head in many parts of Europe and Asia, leading to violence and bloodshed. Indeed, the uneasy mosaic of ethnic, religious and linguistic minorities in South Eastern Europe and Central Asia could well represent the tip of the iceberg of future tensions and internal conflicts. Secondly, the loosening grip of authoritarian regimes and the destructive effect of internal conflict are straining fragile state structures, leading in many cases to disintegration of states into territories controlled by warlords. Humanitarian action is affected as deeply by this vacuum of state power as it is by traditional notions of sovereignty.

Thirdly, the internal wars are producing not only large numbers of refugees, but also many people displaced within their national frontiers. Some of the internally displaced have no possibility of seeking asylum, while others do not wish to do so, while still others are denied it. In fact, the plight of the internally displaced is the silent emergency of our times. There are no accurate figures but estimates of the number of the displaced vary from 15 to 20 million. The largest numbers are to be found in the Horn of Africa, where refugees are returning home only to find themselves displaced, along with civilians fleeing war and soldiers who have been demobilised. In Mozambique, the long-drawn out civil war has produced 4 million internally displaced, in addition to 2 million refugees. In Yugoslavia, bitter ethnic conflict has led to the displacement of over a million displaced persons and refugees within the republics of Yugoslavia, with threats of many more to come. The violent dispute of Armenia and Azerbaijan over the enclave of Nagorno Karabakh has also resulted in substantial internal displacement. It is estimated that the total number of refugees and displaced in the world could exceed 30 million persons, most of them women and children. Fourthly, and here I move from the risks to the opportunities, while some parts of the world are in a volatile state, many others are benefitting from the process of conflict resolution and political reconciliation which the end of cold War has produced. Political settlements in countries as far apart as Angola, Cambodia, El Salvador and South Africa are paving the way for refugees and displaced persons to return home and to restart their lives.

The combined effect of these four factors has been to shift the work of my Office from the relatively stable conditions in the country of asylum to the more turbulent and often evolutionary process in the country of origin. Thus, UNHCR has been confronted with the major challenge of developing principles and strategies to meet the protection and assistance needs of uprooted people in their own country, despite the constraint of sovereignty.

The most acute problems are in the area of protection of returning refugees as well as internally displaced persons. Normally, returning refugees should be reabsorbed in the national protection system, but unfortunately, despite the multilateral efforts at comprehensive peace settlements around the globe, return does not always take place in ideal conditions according to bureaucratic blue prints. To give some examples, the massive exodus of Kurdish refugees last spring had turned within weeks to large-scale spontaneous return, conditioned as much by the decision of the Coalition Forces to set up a safety zone inside Iraq as by the reluctance of Turkey to allow the people in. However, many of the returnees remained displaced inside Iraq for months in insecure and unsafe conditions. In the Horn of Africa, war and food shortages in the country of asylum are forcing people to return home prematurely to areas still subject to instability - politically, economically and environmentally. Two years ago, 30,000 Salvadorean refugees decided to return in desperation after a decade in exile despite the on-going war between the government and the FMLN. In Sri Lanka, Tamil refugees are returning from India to conflict-ridden areas of north eastern Sri Lanka. The net result of such returns is often to shift displacement from one side of the border to the other and to place returning refugees in extremely fragile security conditions. How can UNHCR ensure that those who return in the midst of conflict and insecurity are not left unprotected?

The problems which these returnees face are not dissimilar from that of those who have never left their country but remain displaced within their own borders. In fact when refugees return to conflict areas, they often join the ranks of other internally displaced population. In such situations, the classical distinction between the two categories becomes illogical and impractical, if not inhumane. One of the first decisions which UNHCR made in the Kurdish crisis last spring was to provide protection and assistance to anyone displaced by the insurrection, irrespective of whether or not he or she had crossed an international boundary. By meeting the protection and assistance needs of the internally displaced, we hope to preempt the human suffering which a refugee exodus inevitably causes, and even perhaps help to reduce displacement. This is the reasoning behind our involvement with the internally displaced in Yugoslavia. Protecting and assisting people in their own countries in the midst of violence and insecurity raises many thorny problems of law, policy and practicality. Whereas there is a general recognition that UNHCR retains a residual responsibility for refugees even after they return until they are properly reintegrated in their own countries, we have no mandate for internally displaced who have never crossed a national frontier. In such cases we can only act - and have acted - at the specific request of the General Assembly or the Secretary General, as in northern Iraq and Yugoslavia. Refugee law, which focuses on the protection of persons after they have crossed their national frontier, is, I am afraid, of limited use in this area.

There are of course provisions in humanitarian law, in particular the Additional Protocol II to the Geneva Conventions for the protection of civilians in internal armed conflicts, as well as the mandate of the International Committee of the Red Cross (ICRC), but these too have their limitations. The major problem is that Protocol II comes fully into operation only when the party opposing the Government consists of an organised armed force, uses armed action and controls a significant part of the territory. Consequently, it does not apply to situations of internal disturbances and tensions, which do not meet these conditions, even though violence may be used by either or both parties. Many refugee-producing conflicts fall into this category.

The protection of returnees and the displaced becomes particularly tenuous in situations of internal disturbances and tensions, in which gross and consistent violations of human rights occur but which do not amount to armed conflict, thus precluding the application of humanitarian law instruments. Of course, the law of human rights is applicable in these situations. However, it is considerably weakened by the fact that governments are allowed to derogate from many human rights during a state of emergency, exactly at a time when the need for protecting the individual is the greatest. The U.N. Covenant on Civil and Political Rights contains a derogation clause as do the European and American Conventions on Human Rights. There is no effective international mechanism to question the necessity of governments to resort to emergency powers, nor any means of preventing human rights violations when the State abuses its powers.

Thus, ironically, the level of protection is highest for refugees in their country of asylum, and falls dramatically once they are back over the border. Similarly, protection is high in international armed conflict situations, but significantly lower during non-international armed conflict, and virtually non-existent in situations of internal disturbances and gross violations of human rights, although the protection needs of those displaced in such situations may be acute. This lacuna in the law needs to be addressed urgently if the problem of displacement is to be reduced or resolved. Admittedly, development of the law itself will not resolve the problem if the political will to observe legal obligations is lacking.

A major constraint in developing effective protection mechanisms is the sensitivity on the issue of national sovereignty. The position of the international community has been somewhat ambiguous on the limits of sovereignty. The United Nations Charter upholds sovereignty by forbidding intervention in matters "essentially within the domestic jurisdiction" of states. On numerous occasions, governments have hidden behind this veil to evade responsibility for gross violations of human rights within their borders. However, human rights violations have increasingly entered the realm of legitimate international concern, through the adoption of human rights treaties and use of fact-finding and reporting mechanisms. A further step was taken on 5 April 1991, when the UN Security Council created a precedent by adopting resolution 688, linking human rights violations to threats to international peace and security. It insisted that Iraq allow immediate access by international humanitarian organisations to all those in need of assistance in all parts of Iraq. This resolution was followed by the intervention of the Coalition Forces to create a safety zone in northern Iraq. It has raised a plethora of questions on the limits of national sovereignty in relation to human rights and humanitarian action. Is respect for national sovereignty overriding or does the international community have the right to intervene when there is a gross violation of human rights? Should there be a right of humanitarian intervention? Is there a duty to intervene? What are the risks and advantages of such a concept? The rejuvenation of the UN has reopened the debate on a UN military force under Chapter VII of the UN Charter. Could or should such a force be used for intervention when mass repression of civilian populations amount to threat to international peace and security, or for humanitarian relief in domestic conflicts? Some argue that national sovereignty should not be allowed to block humanitarian action. Others say that the right to intervene is an euphemism for the right to wage war, and, using northern Iraq as an example, have pointed out that intervention often creates more problems than it solves.

If sovereignty is a constraint to protection, so is the corollary decline of State power. The existing inter-state system is based on the concept of viable States. As countries break up into republics, and republics into territories ruled by warlords, who should bear responsibility for the protection of peoples, particularly of civilians? Earlier, I described the lacuna in law - this gap will only widen as statehood degenerates. How can we bring some order, without which responsible humanitarian action is paralysed?

I believe these developments indicate an evolution in the concept of national sovereignty. Through the principles of international human rights, growing emphasis is being placed on the obligations of sovereign governments towards their own people, and greater recognition is being given to the notion that sovereignty carries with it certain responsibilities. The effect of Security Council Resolution 688 has been not so much to advocate humanitarian intervention as to alert governments to rising international interest and collective responsibility on human rights and humanitarian issues.

In any case, humanitarian intervention is a notion relevant to inter-State relations and should not be confused with the activities of international and non-governmental organisations. At the current stage of inter-state relations, the issue, in my view, is not so much of humanitarian intervention but of humanitarian access.

Now I wish to turn to the third area of concern, the modalities that are being developed to overcome the issues of humanitarian action and national sovereignty. For practical reasons if for nothing else, humanitarian action requires as a minimum the acquiescence of the government or authority in power. General Assembly resolution 46/182 of 19 December 1991 tries to find such a balance between sovereign rights and individual needs, as well as between principle and practice. It reaffirms respect for sovereignty, territorial integrity and national unity of all States, and allows humanitarian assistance to be provided with "the consent of the affected country", rather than at its request, which was the previous possibility. Thus, the consensus of international opinion appears to be pointing to a more pragmatic approach, based on acquiescence, rather than intervention. The appointment of the Under Secretary-General for Humanitarian Affairs may be opening up greater possibilities for what is being termed as "humanitarian diplomacy", in other words the unblocking of humanitarian situations through political negotiations. Here, however, I wish to ring a note of caution that discretion and patience will have to be the main stay of any negotiations for humanitarian gains.

Experience shows that it is through such negotiation, improvisation and innovation that humanitarian access can be achieved to ensure the protection and assistance of refugees and displaced persons."Corridors of tranquillity", "humanitarian ceasefire", and "zones of peace" are all pragmatic devices which have been successfully used by the UN in places such as Sudan, El Salvador and Angola with the agreement of the warring parties to allow humanitarian assistance to be provided to those in need. It is interesting to note that even in the case of northern Iraq where access was initially established by force, on-going humanitarian activities by UNHCR have been based on the Memorandum of Understanding reached with the Iraqi government. It was on the basis of this argument that UNHCR and other agency staff established a massive presence in northern Iraq to monitor human rights violations and humanitarian protection. In an innovative move, UN guards, who normally safeguard UN offices and property, were used to supplement monitoring and observing missions.

In Sri Lanka, UNHCR has embarked on another novel experiment. When our traditional function of rehabilitating refugees returning from India was interrupted by renewed fighting, we were compelled to set up relief centres for displaced returnees. Without any legal basis whatsoever, and merely on the strength of our neutral, humanitarian presence, these centres have become havens of safety, accepted and respected by both warring parties. Unfortunately, while our humanitarian efforts have enhanced safety, in the absence of a parallel political initiative, they have failed to lead to a durable settlement of the conflict.

There is a danger that humanitarian access, unsupported by political action, can prolong conflict by anaesthetising human suffering. Fortunately, many UN operations today promote a combination of political solutions and humanitarian activities and thereby reduce this risk. In Yugoslavia, UNHCR is working in partnership with the United Nations peace-keepers to protect and assist the displaced and to try to assure their voluntary return to safe areas. We are about to undertake a major relief operation in close cooperation with other international actors, in the hope that ceasefire agreements and political settlement will ultimately prevail. It is noteworthy that the UN peace-keeping force in Yugoslavia was initially deployed without the full consent of all warring factions. In principle, however, UN peace-keeping and peace-making operations have been built on consent of the parties concerned.

The most innovative effort for protecting nationals in their own country has been taken by the UN in El Salvador where, under Security Council Resolution 693, UN observer missions (ONUSAL) were deployed last year even before a full political settlement had been reached, to verify the undertakings made both by the government and the FMLN to respect human rights. In monitoring the safety of returning refugees in El Salvador, UNHCR works closely with the ONUSAL. The political impetus which improved humanitarian and human rights practices gave to the negotiations eventually led to the conclusion of the Peace Accord in January this year. The Accord, in turn, has helped to stabilise the situation of the returning refugees as well as the displaced.

The responsibilities of the UN Transitional Authority in Cambodia also include developing a human rights awareness programme, generally overseeing human rights as well as investigating and intervening on abuses during the transitional period. It remains to be seen how effective the UN will be in ensuring respect for human rights in Cambodia. What is evident however is that returning refugees and displaced persons, as well as the rest of the civilian population, can only benefit from the inclusion of human rights and humanitarian action in the mandate of multilateral peace-keeping operations.

In conclusion, let me stress the need for a creative humanitarian strategy in a world where political turmoil is likely to continue to produce population displacement of a tremendous scale. I believe such a strategy should seek to develop collective responsibility to bring relief and redress to victims of humanitarian emergencies. It should promote negotiations to create modalities for protecting and assisting vulnerable populations. It should moreover address the lacuna in human rights and humanitarian law, and devise more effective mechanisms to ensure their compliance.

A humanitarian strategy must also recognise the role of preventive measures to avert humanitarian crises and of conflict resolution efforts to bring about political solutions. Indeed, the key lies in political change and the establishment of more representative forms of government, which respect human rights and adequately protect minorities. Multilateral pressure, regional concertation and public opinion can all contribute to this effort. The power of public opinion and the NGOs should not be underestimated. International relations of tomorrow will no longer be dominated by inter-state relations, i.e. States talking to States. The domestic situation of one country creates public pressure on another country, which in turn brings about change beyond its borders. The kind of international humanitarian action that I have discussed is likely to create more "intervention" in the long run, bringing about more radical change than military intervention.

The subject of this Conference provides a fertile area for debate and creative thinking. I wish you good luck in your efforts to weave together the various strands of this very complex issue into a conceptual and practical framework for international cooperation to avert and address humanitarian crises.