Report by Ambassador Felix Schnyder on Military Attacks on Refugee Camps and Settlements in Southern Africa and Elsewhere

EC/SCP/26

1. At its 32nd session the Executive Committee "noted with grave concern the inhuman military attacks on refugee camps in southern Africa and elsewhere, involving extreme and indescribable hardships to refugees and called upon the High Commissioner to examine the serious humanitarian problems resulting from military attacks on refugee camps and settlements which are the concern of UNHCR, and the need for special measures to protect and ensure the safety of such refugees, and to report thereon at the earliest possible date to the Executive Committee" (A/36/12/Add.1, para 57 (1)(h)

2. Pursuant to this conclusion of the Executive Committee, the High Commissioner consulted with a number of concerned Governments, the United Nations Secretariat and the International Committee of the Red Cross and thereafter requested me to carry out a survey of the various aspects of the problem.

3. After having commenced my work in August 1982 I was able to submit to the High Commissioner a preliminary report (EC/SCP/23) which was considered by the Sub-Committee of the Whole on International Protection at its 7th Meeting an d thereafter by the Executive Committee at its 33rd session in October 1982. On that occasion the Committee expressed the hope that the survey to be carried out by me "would lead to the adoption of measures which would make refugee camps and settlements safer from military attacks than they have so far been". The Committee also stressed the urgency of the matter and hoped to receive my final report as soon as possible and to have an opportunity to discuss its contents at an early date and in any case not later than September 1983"(A/37/12/Add.1, paragraph 70 (3) (d) and (e)).

4. The concern expressed by the Executive Committee regarding this problem was dictated by a number of serious cases of military attacks on refugee camps and settlements which had occurred in recent years in southern Africa, Central America and also in Asia. Particular mention should be made of the serious military attack on the Namibian refugee settlement in Kassing a in southern Angola on 4 May 1978. Since that date such attacks have taken place periodically in different areas of the world. The cruel and inhuman attacks on refugee camps and settlements which occurred in Lebanon in September 1982 were of particular gravity and were specifically referred to by the Executive Committee at its 33rd session (A/37/12/Add.1, paragraph 70 (3) (c) Since the Executive Committee's 33rd session there have been further attacks on refugee camps and settlements in Honduras, Mexico and South-East Asia.

5. These various attacks have involved incursions by regular or paramilitary armed forces, indiscriminate bombardments and the brutal killing or abduction of refugees including women, children and aged persons. Apart from the grave harm caused to refugees, such attacks may also endanger the national population of asylum countries and thus lead to the risk of the Governments of these countries adopting more restrictive attitudes towards asylum-seekers in general. In such situations respect for the essential principle of non-refoulement could be endangered.

6. In order to facilitate my task I received full information from the Office of UNHCR. I also had extensive consultations with representatives of Interested Governments both in Geneva and New York, and,.also in New York, with the United Nations Secretary-General and other high-ranking officials of the United Nations Secretariat. I further visited the United Republic of Tanzania - whose President is Chairman of the Committee of Frontline States and had consultations with the Minister for Foreign Affairs, with other high ranking government officials, with the Executive Secretary of the OAU Liberation Committee and with representatives of liberation movements for southern Africa. I also visited Addis Ababa for consultations with the Secretary-General, the Assistant Secretary-General for Political Affairs and the Bureau of the Commission of Fifteen on Refugees of the Organization of African Unity. On my visit to Africa I was accompanied by the Director of International Protection of UNHCR. In carrying out my task I also received valuable advice and assistance from the International Committee of the Red Cross (ICRC).

7. It must be stressed that military attacks on refugee camps and settlements across international borders constitute first and foremost a violation of the sovereignty and territorial integrity of asylum countries, which is of course a matter outside the scope of the High Commissioner's competence. it is primarily the task of Governments of asylum countries to protect their territory and thereby refugee camps and settlements with all the means at their disposal. It is also for these Governments, if judged necessary, to appeal to the political organs of the United Nations and to seek the intervention of the Security Council which has indeed already been requested to concern itself with cases of this nature. The High Commissioner for his part has to focus his attention and his humanitarian concerns on the need to bring help to the refugee victims of such attacks.

8. In approaching the various problems connected with military attacks on refugee camps and settlements it is in the first instance necessary to determine the competence of UNHCR in this matter. In carrying out his purely humanitarian and non-political mandate, the High Commissioner is required by the Statute of his Office to extend international protection and to promote durable solutions for refugees who are of his concern. International protection is aimed essentially at ensuring that refugees are treated in accordance with basic standards recognized by the international community. It does not Involve providing actual physical protection to refugees for which the authorities of asylum countries are primarily responsible. The physical safety of refugees is nevertheless a matter of major concern to the High Commissioner and the various types of action he can appropriately take in the case of military attacks on refugee camps and settlements are enumerated In the following paragraphs.

9. The High Commissioner must in the first place make every effort to promote conditions which ensure that refugees in camps and settlement's are not exposed to the danger of military attacks. This may require refugees to be settled away from the frontiers of States from which such attacks may emanate. Measures by Governments of asylum countries and other actions may also be called for in order to ensure that refugees do not become involved in activities 'likely to bring about such attacks. In order that the High Commissioner can promote conditions of safety for refugee camps and settlements it is of the utmost importance that UNHCR be given full and regular access to them. It may also be necessary for the High Commissioner to maintain a regular presence in refugee camps and settlements which might be exposed to military attacks. The High Commissioner could also give consideration to a possible initiative vis-à-vis Governments in consultation with the International Committee of the Red Cross to provide refugee camps and settlements with a protection analogous to that defined in the IVth Geneva Convention relative to the protection of civilian persons in time of war of 12 August 1949 and Additional Protocols I and II of 8 June 1977.

10. Both before and after a military attack on a refugee camp or settlement has occurred it is important for the High Commissioner to maintain contact with all the parties concerned with a view to carrying out his humanitarian tasks. The High Commissioner - in pursuing his humanitarian aims - could also envisage the possibility of addressing an appropriate appeal to all parties concerned for the safety of refugees in camps and settlements. The High Commissioner should also maintain close contact with the political organs of the United Nations with a view to coordinating any action which may be necessary either before or after a military attack on refugee camps and settlements has taken place. He may, in particular, be called upon to co-operate with the United Nations Secretary-General by participating in a joint mission to the affected area to evaluate the situation and to establish the humanitarian need to be met.

11. Where a military attack on a refugee camp or settlement has occurred it is of course the normal responsibility of UNHCR to ensure is a matter of urgency that all necessary assistance is provided to the refugee victims.

12. In taking action as indicated in the preceding paragraphs it is imperative for the High Commissioner to adhere strictly to his purely humanitarian and non-political role if the credibility and effectiveness of such action is to be maintained. I was indeed gratified to note in all my contacts that this basic necessity was fully understood. The High Commissioner must therefore focus his particular attention on the humanitarian aspects of the problem or military attacks on refugee camps and settlements both before or after such attacks have occurred. In such situations, however, the political and non-political aspects are closely interrelated and UNHCR's action in the purely humanitarian field can also help to promote a more general solution. For instance, endeavours by UNHCR to encourage the transfer of refugee camps away from endangered border areas could well contribute to a solution of the problem or security in the region. The High Commissioner can moreover act as an intermediary of good-will in encouraging Governments to find a more general solution to the problem which in turn could also make it easier for UNHCR to carry out its normal humanitarian tasks.

13. Finally, UNHCR must be continually aware of the problem of the physical safety of refugees in camps and settlements for which it should seek to arouse the widest possible International interest. The High Commissioner has Indeed already adopted this approach, has publicly voiced his consternation on behalf of the international community whenever military attacks on refugee camps and settlements have occurred and has duly reported on such attacks to the United Nations General Assembly. The High Commissioner, with the support of the Executive Committee, might even envisage go further and request the General Assembly itself to make this burning question the subject of a solemn declaration. The draft text for such a declaration is attached to the present report for possible further consideration.

14. The prevention of military attacks on refugee camps and settlements will, however, normally call for action on the political plane which, due to his purely humanitarian and non-political mandate, cannot be undertaken by the High Commissioner who, in such situations, may need to have recourse to the competent political organs of the United Nations. Where it appears that there is a serious threat of a military attack or a renewed attack against a refugee camp or settlement, it may be necessary for the High Commissioner to bring the matter to the attention of the United Nations Secretary-General who, with the diplomatic means at his disposal, may well be in a position to assist. The Secretary-General might also decide to submit the matter to the Security Council. The possibility of such an Initiative and of preventive action by the Security Council is implied by the Secretary-General in his Report on the Work of the Organization submitted to the General Assembly at its 37th Session. The relevant passages read as follows:

"Unfortunately there has been a tendency to avoid bringing critical problems to the Security Council, or to do so too late for the Council to have any serious influence on their development. It is essential to reverse this trend if the Council Is to play its role as the primary world authority for international peace and security ... "

"In order to avoid the Security Council becoming involved too late in critical situations, It may well be that the Secretary-General should play a more forthright role in bringing potentially dangerous situations to the attention of the Council within the general framework of Article 99 of the Charter". (A/37/1 pages 5 and 6).

15. In the case of military attacks on refugee camps and settlements the political and non-political, i.e. humanitarian, elements are always closely Interrelated. It may not therefore be possible for the High Commissioner to undertake effective action - even to achieve his purely humanitarian objectives - otherwise than in close co-operation with the political organs of the United Nations, and in close consultation with the United Nations Secretary-General which should be established In every case. In other words, it is imperative that all concerned international and indeed also national organs co-operate effectively to establish as meaningful a division of labour as possible.

16. In conclusion, it should be stressed that a military attack on a refugee camp or settlement may give rise to a particularly heavy burden for the State affected, which the State may often not be in a position to meet without the assistance of the international community. In such situations it will be necessary to Invoke the support of other States in the context of international solidarity and humanitarian concern. This need should be taken fully into account in regard to any action envisaged to meet any specific problems which may arise.

ANNEX - DRAFT DECLARATION ON THE PROHIBITION OF MILITARY OR ARMED ATTACKS AGAINST REFUGEE CAMPS OR SETTLEMENTS

The General Assembly,

Having considered the recommendation of (ECOSOC/ExCom...)

Noting that the purposes proclaimed in the Charter of the United Nations are to maintain international peace and security, to develop friendly relations among all nations and to achieve international cooperation in solving international problems of an economic, in promoting and social, cultural or humanitarian character, and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion,

Stressing the obligation of States under the United Nations Charter, in particular Article 55, to promote universal respect for and observance of human rights and fundamental freedoms,

Recalling that the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights proclaim that all human beings are born free and equal in dignity and rights and that" everyone has the right to life, liberty and security of person,

Reaffirming that recognition of the inherent dignity and of the equal and inalienable rights of all persons of the human family is an essential foundation of freedom, justice and peace in the world,

Reiterating that the granting of asylum to refugees by a State is a peaceful and humanitarian act and that as such, it shall not be regarded as an unfriendly act by any other State,

Expressing profound concern over the indescribable sufferings of refugees, among whom there are many women, children and aged persons, victims of cruel and inhuman attacks often resulting in their maiming or death,

Deploring and condemning the increasing frequency and scale of attacks on refugee camps and settlements in many parts of the world,

Recognizing that military or armed training in refugee camps or settlements and the utilization of refugee situations and refugees themselves for the purpose of promoting military or political objectives can frequently expose refugees to serious physical danger,

Recalling the relevant provisions contained in international instruments relating to human rights and humanitarian law, in particular, in the IVth 1949 Geneva Convention relative to the protection of civilian persons In time of war and the 1977 Additional Protocols I and II, the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees and the 1969 OAU Convention governing the specific aspects of refugee problems in Africa,

Bear in mind the primary function of the United Nations High Commissioner for Refugees with regard to the international protection of refugees,

Stressing the primary responsibility of Governments of asylum countries for the safety or refugees in their territories,

Conscious of the need for adopting appropriate measures and guidelines for ensuring the safety or refugee camps and settlements,

Solemnly proclaims this Declaration on the prohibition of military or armed attacks against refugee camps and calls for the strict observance of the Declaration by all States.

1. Camps and settlements accommodating refugees shall not be the object of military or armed attacks.

2. For reasons of safety, refugee camps and settlements shall as far as possible be located at a reasonable distance from the frontier of the refugees' country of origin or from other areas where refugees may be exposed to danger.

3. States shall undertake all possible measures to ensure that refugees residing within their territories do not become involved in armed activities against any State.

4. Refugees accommodated in camps or settlements are protected by virtue of their being non-combatants by rules of customary and conventional international law relating to the protection of civilian populations against the effects of hostilities. They are notably protected by the rules of international customary law prohibiting attack on civilians and by the relevant provisions of the IVth Geneva Convention of 12 August 1949 and Protocols I and II of 8 June 1977 when these are applicable.

5. States in cooperation with UNHCR and ICRC should examine whether and to what extent protection similar to that provided in the IVth Geneva Convention of 12 August 1949 (article 14: Sanitary and Safety Zones and Localities; article 15: Neutralized Zones) and Protocol I of 8 June 1977 (article 59: Non-protected Localities; article 60: De-militarized Zones) can be applied to refugee camps and settlements.

6. UNHCR and other competent humanitarian organizations shall be given access to refugee camps and settlements in order to facilitate the accomplishment or their humanitarian tasks.

7. All States In a spirit of international solidarity and humanitarian concern shall come to the aid of the victims or armed attacks on refugee camps and settlements and of States where camps and settlements subjected to such attacks are located.