I. INTRODUCTION

1. On 21 May 1997, the Security Council met to discuss how to improve protection for humanitarian assistance to refugees and others in conflict situations. The President of the Security Council subsequently issued a statement on 19 June 1997 (S/PRST/1997/34) summarizing the conclusions and recommendations of the debate and encouraging the Secretary-General to study the matter further. The present report has been prepared in response to that request.

2. The urgency and importance of addressing this issue should be seen in the context of the ever more violent and volatile environments in which refugees, displaced persons and other victims of conflicts find themselves and in which the United Nations and other humanitarian organizations are expected to operate. Erosion of respect for humanitarian norms has led to an increase in the number of civilian casualties, aggravated the protection and assistance needs of refugees and others in conflict situations, complicated the task of providing humanitarian assistance and increased the risks faced by humanitarian personnel. Ensuring peace and reconciliation in post-conflict societies has also become more difficult in the wake of massive suffering and cruelty, often leading to renewed tensions and fighting.

3. While the Secretary-General's report of 13 April 1998 on the causes of conflict and the promotion of durable peace and sustainable development in Africa (S/1998/318) covered, inter alia, the humanitarian dimension of conflicts in Africa, the present report focuses on four specific issues raised by the above-mentioned presidential statement, namely:

• The compliance of State and non-State actors with the provisions of international law, including international humanitarian law, human rights law and refugee law;
• The access of refugees, displaced persons and vulnerable populations in conflict situations to international protection and assistance;
• The safety and security of personnel of United Nations and humanitarian organizations;
• The role of the Security Council in humanitarian operations.

4. Although the paper deals essentially with the role of international organizations in humanitarian operations, the contribution of affected States and the local community in responding to the needs of refugees, displaced persons and other victims in conflict situations needs to be given proper recognition. The importance of supporting local structures and building local capacity for providing humanitarian assistance should not be overlooked.

A. Relevant international legal instruments

5. A substantial body of international law and principles has been developed to protect civilians, refugees and other vulnerable populations in conflict situations. Although international humanitarian law, refugee law and human rights law are often treated as separate branches of international law, they all have a common goal of protecting individuals from harm and should therefore be considered as complementary.

6. The 1948 Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the Convention on the Prevention and Punishment of the Crime of Genocide and other important human rights instruments contain provisions, most of which continue to apply even during times of conflict, although there are grounds for derogation from some of the provisions under certain circumstances.

Fundamental human rights such as the right to life and the prohibition of torture may however under no circumstances be subject to derogation.

7. Humanitarian law is specifically intended to address humanitarian problems arising directly from international or non-international conflicts by safeguarding the most basic human rights in conflict situations and by limiting the methods and means of warfare. The 1949 Geneva Conventions and the Additional Protocols of 1977 contain well-established norms of international humanitarian law for the protection of civilians and other persons not taking part in the hostilities.

8. The 1951 Convention and 1967 Protocol relating to the Status of Refugees are the principal international instruments concerning the protection of refugees. Instruments such as the 1969 Organization of African Unity (OAU) Convention governing the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration on Refugees have been developed to deal with refugee situations at the regional level.

9. The General Assembly in its resolution 52/167 of 16 December 1997 on the "Safety and security of humanitarian personnel", emphasized:

• The need for the international community to assist and protect the affected civilian population, including refugees and internally displaced persons;
• The urgent need to ensure respect for and promotion of the principles and norms of international humanitarian law, including those related to the safety and security of humanitarian personnel;
• The full investigation by States of any threat or act of violence committed against humanitarian personnel.

B. Problems of compliance with international law

11. Although most States are parties to the 1949 Geneva Conventions, not all States have acceded to the Additional Protocols or to the basic international instruments on human rights and refugees. Moreover, those States that have acceded do not always comply with the relevant norms, principles and provisions.

12. While compliance with the rules of international law has been a perennial problem in conflict situations, there is ample evidence which suggests that the situation has dramatically worsened in recent years because of the changing pattern of conflicts. In situations of internal conflicts, whole societies are often mobilized for war and it is difficult to distinguish between combatants and non-combatants. Young children are being recruited and trained to fight in violation of the Convention on the Rights of the Child and the Additional Protocols to the Geneva Conventions. Civilian populations are being specifically targeted and the forced displacement of civilian populations is now often a direct objective, rather than a by-product, of war. In countries of asylum, the civilian character of refugee camps has been compromised by the presence of armed elements and has become a source of instability and insecurity for refugees, the host community and humanitarian personnel.

13. Many conflict situations have been rendered particularly complex and violent because of the involvement of irregular armed groups, militia, foreign mercenaries, child soldiers, criminals and other disparate groups who have little knowledge of or respect for the rules of international law. Also, there is often a serious problem of political control over the groups, with local commanders being answerable to no one but themselves. As a result, it is difficult to hold parties to the conflict to account when violations of international law take place. Furthermore, as noted in my report on the causes of conflict and the promotion of durable peace and sustainable development in Africa (S/1998/318), many protagonists have a strong material interest in prolonging the conflict and, consequently, little incentive to respect humanitarian norms.

14. A major problem has been the failure of States to bring to justice those who violate the law. The result has been the development of a culture of impunity in which flagrant violations of human rights and humanitarian law continually go unpunished. The setting up of ad hoc international tribunals in the context of the former Yugoslavia and Rwanda and the recent decision to establish the International Criminal Court have been significant developments in the context of ensuring accountability of those who violate international law. It is noteworthy that the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court granted the Court jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression, although it remains for the contracting States to properly define the crime and set out the conditions under which the Court shall exercise jurisdiction with respect to such crimes. The Court also recognized individual responsibility for the crimes.

A. Humanitarian access and the responsibility of States

16. States have primary responsibility for ensuring that refugees, displaced persons and other vulnerable populations in conflict situations benefit from the necessary assistance and protection and that United Nations and other humanitarian organizations have safe and unimpeded access to these groups. However, States themselves often deny humanitarian access and defend their actions by appealing to the principle of national sovereignty in matters deemed essentially within their domestic jurisdiction. While full respect must be shown for the sovereignty, independence and territorial integrity of the States concerned, where States are unable or unwilling to meet their responsibilities towards refugees and others in conflict situations, the international community should ensure that victims receive the assistance and protection they need to safeguard their lives. Such action should not be regarded as interference in the armed conflict or as an unfriendly act so long as it is undertaken in an impartial and non-coercive manner.

B. International efforts to ensure humanitarian access

17. In recent years, humanitarian access has been hampered by general insecurity arising from the conflict, an inability or unwillingness on the part of State or non-State actors to allow such access and, in some cases, deliberate attempts to obstruct humanitarian assistance. The cost in human lives and human suffering has been enormous.

18. International efforts to obtain humanitarian access have taken various forms. The most common means continues to be through negotiations conducted by humanitarian organizations with parties to the conflict, as in the case of Operation Lifeline Sudan or the United Nations operation in Afghanistan. Access has been easier to obtain where all parties have viewed the operation as being impartial, neutral and purely humanitarian. The frequent interruptions of assistance to victims in the Sudan and Afghanistan indicate the difficulties of maintaining humanitarian access even where the parties have agreed on the need for humanitarian assistance.

19. In a number of situations it has not been possible for humanitarian organizations to gain access because of the blatant disregard of international humanitarian principles by the combatants and the deliberate obstruction of assistance to civilians as a major element of their military strategy. In some of these circumstances the international community has resorted to the use of political and military action to gain humanitarian access and ensure the security and effective implementation of humanitarian operations. The special measures have taken different forms, for instance, United Nations peacekeeping forces in Bosnia and Herzegovina and Somalia, United Nations guards in northern Iraq, United Nations-authorized military forces in Somalia, and regional security forces in Liberia, as well as in Bosnia and Herzegovina since December 1995.

20. United Nations peacekeeping forces and other international and regional security forces have often helped to provide security for humanitarian personnel and to improve access to vulnerable populations by, inter alia, escorting relief convoys, clearing landmines, rehabilitating roads and bridges, and managing airports. The civilian components of peacekeeping operations have also made significant contributions to humanitarian operations. However, difficulties encountered by the operations have underlined the importance of establishing realistic mandates, clearly defined objectives and proper coordination mechanisms, backed by adequate resources.

21. It is worth noting that the issue of resources is of critical importance not only for the purpose of ensuring access but also for the provision of humanitarian assistance itself. Humanitarian access must be supported by sufficient funds to meet the protection and material needs of refugees, displaced persons and other victims in all phases of an operation.

22. "Safety zones" and "safe areas" have been established by the United Nations in a number of operations to protect vulnerable civilian populations in conflict situations and to improve access for delivery of humanitarian assistance. Unlike "neutralized zones" or "demilitarized zones" authorized under the rules of international humanitarian law and established with the consent and cooperation of the parties to the conflict, the "safety zones" and "safe areas" in northern Iraq, Bosnia and Herzegovina and Rwanda were established by the Security Council, acting under Chapter VII of the Charter of the United Nations. In some situations, for example, Bosnia and Herzegovina, "safe corridors" were established to ensure the safe passage of humanitarian assistance and personnel. The establishment of "safe corridors" was also considered by the Security Council in the context of the then eastern Zaire (Democratic Republic of the Congo) and Burundi.

23. The purpose of "safe corridors" has been to establish access. "Safety zones" and "safe areas" are intended to protect vulnerable civilian populations in conflict situations as well as to improve access for the United Nations and humanitarian organizations. However, safety zones and safe areas can only be effective when the political will of the Security Council is manifested in a credible deterrent pressure to protect the area itself as well as its supply lines.

24. Although security forces have provided valuable support to humanitarian operations, humanitarian organizations have been concerned that the use of the military for humanitarian activities, particularly in the context of Chapter VII operations, compromises their impartiality and neutrality, affects their ability to assist victims on all sides of the conflict and, at times, even leads to increased violence against United Nations and other humanitarian personnel. In the context of Chapter VII operations, therefore, the withdrawal or temporary suspension of activities by humanitarian organizations cannot be ruled out.

25. Clearly, when parties to a conflict deliberately obstruct assistance to civilians as a major element of their respective military strategies, the provision (and protection) of humanitarian assistance, while essential, will not always be viewed by the parties as "neutral". When the international community disrupts their war aims in this manner, they can be expected to react. In such cases, the operation must have sufficient coercive capacity to ensure the implementation of its mandate (e.g., protection of humanitarian assistance and of the population in the area) as well as the safety and security of its personnel.

A. The nature and causes of insecurity

26. There has recently been a disturbing increase in the number and scale of direct, calculated attacks or use of force against the personnel of United Nations and other humanitarian organizations. Between 1 January 1992 and 31 August 1998, 153 United Nations international and local staff members lost their lives in the line of duty, 35 of whom were engaged in humanitarian operations. During the same period, 43 incidents of hostage taking of United Nations staff occurred, 25 of which involved humanitarian personnel. At least 23 persons working for the Red Cross movement have been killed since 1996 in the Great Lakes region of Africa alone. Death and injury to the staff of non-governmental organizations would bring the total to a much higher figure.

27. The insecurity faced by humanitarian personnel is the result of three main factors:

• A desire by State or non-State actors in conflict situations to disrupt humanitarian operations which they consider as undermining their own political, strategic or military goals;
• A desire to remove actual or potential witnesses to human rights abuses and other violations of international law by creating an environment in which it is not safe for them to operate;
• A general mistrust and suspicion regarding the motives and intentions of humanitarian organizations.

28. The danger faced by humanitarian personnel has also been exacerbated by the presence of armed combatants and criminal elements in refugee camps and refugee-populated areas and among groups of displaced persons.

29. The problems of insecurity faced by locally recruited personnel of United Nations and other humanitarian organizations needs to be highlighted. The religious and/or ethnic origin of these persons often places them in a vulnerable position with regard to one party or the other in internal conflicts.

B. Responsibility of States

31. The Statute of the International Criminal Court now provides in its Article 8, paragraph 2 (b) (iii) and (e) (iii), respectively, that in an international armed conflict and in an armed conflict not of an international character, the following constitutes a "war crime":

Therefore, attacks against both United Nations and humanitarian personnel now constitute war crimes under the Rome Statute of the International Criminal Court and fall within the jurisdiction of the Court.

C. Responsibility of non-State actors

32. Although non-State actors are liable for violations of international law pertaining to the safety of humanitarian operations and personnel, it is difficult in practical terms to enforce accountability. Usually in internal conflict situations, the national legal and judicial mechanisms do not function effectively and violations are not properly investigated or prosecuted. Moreover, the training and dissemination activities which the International Committee of the Red Cross (ICRC) and other humanitarian organizations have traditionally undertaken with respect to State structures and military forces are inherently more difficult with respect to non-State actors. However, the ground rules initiative in southern Sudan is one relatively successful effort to persuade non-State actors to comply with international humanitarian and human rights law and may serve as a model.

33. The principle of individual criminal responsibility is of particular importance for ensuring accountability of non-State actors under international law. Ad hoc international tribunals established in the context of the former Yugoslavia and Rwanda are recent examples of mechanisms that have sought to ensure such accountability. The jurisdiction of the International Criminal Court over individuals will also help to promote greater accountability with respect to non-State actors.

V. ROLE OF THE SECURITY COUNCIL IN HUMANITARIAN OPERATIONS

34. The General Assembly has primary responsibility for providing policy guidance for United Nations humanitarian operations. However, in recent years it has become evident that humanitarian crises, particularly large-scale refugee problems, are often a precursor and affect international peace and security for which the Security Council has primary responsibility. Conversely, large-scale human suffering and displacement is a consequence and sometimes a contributing factor to instability and further conflict. It is crucial for the Security Council to be kept informed of the humanitarian problems related to a conflict, so as to enable it to take into account all aspects of a conflict and develop a comprehensive approach to conflict resolution in coordination with the General Assembly, the Economic and Social Council, other relevant bodies of the United Nations, regional and subregional organizations, international financial institutions and other relevant organizations, as well as Member States. The degree and nature of involvement of the Security Council in humanitarian operations will, however, vary according to the situation.

35. The different circumstances in which humanitarian operations have been conducted can be broadly categorized as follows:

• Where humanitarian access can be assured through negotiations without Security Council involvement or action. This is the scenario, for instance, in Operation Lifeline Sudan;
• Where humanitarian operations are affected by serious security problems and where the efforts of the host State need to be supported by the international community, for instance through the contribution of personnel, equipment, training, logistics or similar measures. An example is the support provided by the international community through the Office of United Nations High Commissioner for Refugees (UNHCR) to the Government of the United Republic of Tanzania since April 1995, which improved security in refugee camps. In such situations, the Security Council should be kept regularly informed with a view to preventing further deterioration and taking appropriate measures if the need arises;
• Where humanitarian operations are affected by serious security problems which host States are not able or willing to address in a satisfactory manner, but where there is consent from the parties to the conflict for the presence of external security forces. The Security Council may determine the need to deploy peacekeeping forces and/or to take other measures, with the consent of the host State, to provide security support to the humanitarian operation. This was the situation, for instance, in both Cambodia and Bosnia and Herzegovina;
• Where humanitarian operations are affected by serious security problems which the host States are not able or willing to address in a satisfactory manner, and where one or more of the parties to the conflict do not consent to the presence of external security forces. In this case, a decision by the Security Council may be required to launch enforcement action in order to achieve humanitarian objectives where there is a threat to international peace and security. This was the approach attempted in northern Iraq (1991), Somalia (1992) and Bosnia and Herzegovina (1995).

36. Action by the Security Council to protect humanitarian assistance may take different forms and include both military and civilian components, such as international police, United Nations guards or human rights observers. It is important to consider the full range of options, keeping in mind the need to manage and resolve the conflict, the security needs of the humanitarian operations, the impact which military and political actors have on a humanitarian operation, and vice versa. In the formulation of options for the Council's consideration, the essential requirement for consultation and coordination with humanitarian organizations cannot be overemphasized.

37. An integrated approach is particularly important in the field, where lack of cohesion or differences among United Nations entities can be exploited by the parties. Accordingly, the Special Representative of the Secretary-General for multidimensional peacekeeping operations is responsible for the implementation of the mandate and has authority over all United Nations entities in the field.

38. Support from the Security Council for humanitarian operations needs to be paralleled by political action to address conflict, without which the effectiveness of humanitarian action is undermined. The significant humanitarian impact of the involvement of the United Nations in Somalia was overshadowed by the failure to achieve progress on the political front. In Rwanda, in 1994, a massive humanitarian operation was launched but the absence of a concurrent international commitment to address the political and security dimensions of the situation allowed genocide to be committed and jeopardized regional peace and stability.

A. Accession to international law instruments

39. It is expected that Member States would reaffirm, strengthen and comply with the existing norms, principles and provisions of international law, including humanitarian law, human rights and refugee law, to ensure protection of and assistance to refugees, displaced persons and others, humanitarian access, and the safety and security of United Nations and other humanitarian personnel. Member States which have not yet acceded to the relevant instruments may wish to consider early accession.

B. Dissemination and advocacy of humanitarian principles

40. The dissemination of norms, principles and provisions of international law is an important step in encouraging compliance. Information, training and advocacy activities of the International Committee of the Red Cross, the Office of the United Nations High Commissioner for Refugees, the Office of the United Nations High Commissioner for Human Rights, the Emergency Relief Coordinator in collaboration with Inter-Agency Standing Committee partners (Office for the Coordination of Humanitarian Affairs) and the United Nations Children's Fund (UNICEF) should be strengthened. Inasmuch as the efforts aimed at ensuring compliance with international law contributes to maintaining international peace and security, these efforts should be supported by the Security Council. The monitoring of such compliance is also an important step in promoting protection.

C. Mechanisms to ensure compliance with international law

41. The culture of impunity which currently prevails on violations of humanitarian norms should end. All those who violate international law must be brought to justice, whether they are State or non-State actors. States have primary responsibility for ensuring that those who violate humanitarian norms are prosecuted through the national criminal justice system or, where appropriate, through international criminal tribunals, including the International Criminal Court.

42. The setting up of international tribunals in the context of the former Yugoslavia and Rwanda and the recent decision to establish the International Criminal Court mark important attempts by the international community to end the culture of impunity. Further measures should continue to be taken to expand and strengthen the jurisdiction of the International Criminal Court. It is useful to note that article 8, paragraph 2 (b)(xxv); of the Statute qualifies as war crimes the following acts:

D. International solidarity and support for host States

44. Solidarity and burden-sharing are also important in encouraging States to respect humanitarian principles and obligations. Greater attention should be paid to the political, economic and social impact on countries which receive large refugee populations. The international community should acknowledge their contribution and be ready to assist these States, not only in terms of humanitarian assistance but also for rehabilitation of refugee hosting areas. Such assistance should not, however, be given at the expense of regional development cooperation assistance. In this context, close coordination and cooperation is needed between humanitarian organizations and development agencies.

E. Measures to improve security and access

45. The Security Council may wish to give serious consideration to developing a range of options to maintain law and order and create a secure environment for civilians endangered by conflict and for the delivery of humanitarian assistance in conflict situations. The options should include a variety of measures, starting with modest efforts to boost local and national capacity including community-based protection and moving on to greater international involvement when security problems escalate, and encompassing a range of actors, national and international, civilian and police, as well as military.

46. In order to enhance their own security as well as that of humanitarian personnel, efforts should be made to locate refugees at a reasonable distance from international borders in camps of limited size. In the context of Africa, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa contains specific provisions to this effect.

47. Armed combatants among refugee and displaced populations are a source of insecurity and should be separated from the civilians. While refugee-hosting States bear primary responsibility for the maintenance of law and order in and around refugee camps, they sometimes lack the will or the capacity to establish and maintain the rule of law in refugee camps or refugee-populated areas. In the interests of international peace and security, the Security Council is expected to ensure that the host State receives the necessary support and that appropriate measures are taken, in a timely manner, to separate armed elements from refugees and other civilians.

48. The proliferation of arms is a major factor affecting the security of both refugees and other vulnerable populations as well as United Nations and humanitarian personnel. More vigorous efforts need to be made to monitor and regulate the trade in arms to areas of actual or potential conflict. The Security Council may wish to consider imposing an arms embargo in situations where civilians are targeted by the parties to the conflict or where the parties are known to be involved in gross violations of human rights. The Council may also wish to consider establishing a more effective mechanism for the implementation of arms embargoes. Member States are urged to take the necessary steps, including domestic legislation, to penalize those engaged in illicit trade. Greater attention should also be paid to the role of private arms traders, including the role the United Nations might play in compiling, tracking and publicizing such information. There is a need for this issue to be addressed by the Security Council as a matter of urgency.

F. Safety of humanitarian personnel

49. Steps should be taken to encourage Member States to ratify the 1994 Convention on the Safety of United Nations and Associated Personnel and the Statute of the International Criminal Court, so that they may enter into force as soon as possible. Efforts should be made to extend the application of the Convention so that it adequately covers all humanitarian personnel.

50. United Nations and other humanitarian personnel should be adequately trained on security procedures prior to deployment. A security training package for humanitarian personnel working in conflict situations has been developed jointly by the United Nations Security Coordinator in collaboration with UNHCR. The Administrative Committee on Coordination (ACC) has approved the implementation of a mandatory security training programme for all United Nations personnel. Unfortunately, none of the organizations concerned have made the funds available to undertake this training.

ACC has also approved the establishment of a Trust Fund for Security to supplement existing funding mechanisms. The Trust Fund was formalized in June 1998 and solicitations were sought from Member States. So far only one Government has responded positively. Therefore the attention of Member States is drawn to the existence of this Trust Fund and they should be encouraged to contribute to efforts to ensure the security of United Nations staff.

G. Security Council involvement

51. It is important that humanitarian activities not be viewed in isolation from the overall social, political and economic context of a conflict. The Security Council should be kept regularly informed of the humanitarian situation in cases of potential or actual conflict so that it has a comprehensive picture of the problem.

52. In situations where a decision is made by the Security Council to deploy United Nations troops or other external security forces in support of humanitarian operations, it is of critical importance that they be given clear, realistic and appropriate mandates, that they be deployed in a timely manner and that they be adequately resourced and supported. A clear mandate is important in order to delineate the respective responsibilities of the military and humanitarian actors, and to ensure effective and timely action.

53. Several of the recommendations contained in the present report, namely those expressed in paragraphs 42, 44, 45 and 47, coincide with the recommendations made in my report on Africa entitled "The causes of conflict and the promotion of durable peace and sustainable development in Africa" (S/1998/318). Upon receipt of my earlier report, the Security Council, in its resolution 1170 (1998) of 28 May 1998, established an ad hoc Working Group to review all recommendations in the report relating to the maintenance of international peace and security, in accordance with the Charter of the United Nations, and in that context, to prepare a framework for the implementation of recommendations, as appropriate, and to submit specific proposals for concrete action for consideration by the Council by September 1998.

H. Effective Coordination

54. It is also vital to ensure that mechanisms exist on the ground for the effective coordination between the political and the military components of a United Nations operation, on the one hand, and the human rights and humanitarian components on the other. Working arrangements between international security forces and United Nations or other humanitarian organizations should ensure that the distinct nature of their respective tasks are fully understood and that policies and strategies are properly coordinated. In this connection, a working group of the Executive Committee on Peace and Security and the Executive Committee on Humanitarian Affairs has been established to better define the relationship between Special Representatives of the Secretary-General and Humanitarian Coordinators as well as those of the Human Rights and other components of United Nations missions. The role of the Special Representatives of the Secretary-General has been enhanced to this end to include authority in the cases of multidimensional peacekeeping operations for all United Nations entities in the field.

55. Every effort should be made to support the work of the Emergency Relief Coordinator and the member organizations of the Inter-Agency Standing Committee to ensure coordination of humanitarian operations. The Executive Committee on Humanitarian Affairs, convened by the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, has been established to further this objective. Common guidelines for engagement in humanitarian operations in accordance with established principles are also being developed by the Office for the Coordination of Humanitarian Affairs in cooperation with its partners.

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