Rule 131. In case of displacement, all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule is additional to the right of displaced civilians to the same protection as other civilians, including the fundamental guarantees provided for in Chapter 32.
The Fourth Geneva Convention provides that an occupying power undertaking an evacuation for the security of the civilian population or for imperative military reasons, “shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated”.
The rule is repeated in many military manuals.
In the Krupp case
in 1948, the United States Military Tribunal at Nuremberg adopted the statement by Judge Phillips in his concurring opinion of 1947 in the Milch case
, according to which one of the conditions under which deportation becomes illegal:
occurs whenever generally recognized standards of decency and humanity are disregarded … A close study of the pertinent parts of Control Council Law No. 10 strengthens the conclusions of the foregoing statements that deportation is criminal … whenever the deportation is characterized by inhumane or illegal methods.
Additional Protocol II provides that should displacements of the civilian population be ordered for the security of the civilians involved or for imperative military reasons, “all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition”.
Furthermore, Additional Protocol II requires that “all appropriate steps shall be taken to facilitate the reunion of families temporarily separated”.
The rule requiring measures to be taken to safeguard the civilian population in case of displacement is also set forth in agreements concluded between the parties to the armed conflicts in Bosnia and Herzegovina, Mozambique and Sudan.
Several military manuals which are applicable in or have been applied in non-international armed conflicts contain this rule.
This rule is also provided for in national legislation, in particular that of Colombia, Croatia and Georgia concerning displaced persons.
In 1996, Colombia’s Constitutional Court held that displaced persons had the right to receive humanitarian assistance and to be accorded protection by the State.
Official statements and other practice relating to non-international armed conflicts also support this rule.
No official contrary practice was found with respect to either international or non-international armed conflicts. The UN Security Council has called for respect for this rule in both international and non-international armed conflicts.
The Guiding Principles on Internal Displacement requires that competent authorities must provide internally displaced persons with and ensure safe access to essential food and potable water, basic shelter and housing, appropriate clothing and essential medical services and sanitation.
The International Conferences of the Red Cross and Red Crescent have adopted several resolutions stressing the importance of this rule.
The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict take effective measures to ensure that if displacement occurs, “appropriate assistance” is provided to persons thus displaced.
The duty to avoid, as far as possible, the separation of family members during the transfer or evacuation of civilians by an occupying power is provided for in the Fourth Geneva Convention.
The principle of preserving the family unity of refugees and displaced persons is also set forth in some other treaties.
This duty is also set forth in a number of military manuals.
It should be noted, furthermore, that respect for family unity during displacement is an element of the requirement to respect family life (see Rule 105).
With respect to separation of children from their parents, the Convention on the Rights of the Child provides that “States Parties shall ensure that a child shall not be separated from his or her parents against their will”.
The UNHCR Executive Committee urged States to take all possible measures to prevent separation of children and adolescent refugees from their families.
In his report on unaccompanied refugee minors in 1998, the UN Secretary-General stated that in situations such as Sierra Leone, Guinea-Bissau and Kosovo, children fleeing from war zones were involuntarily separated from their families, and he urged States to support measures that would avoid such occurrences.
The same point was made in two resolutions adopted by consensus by International Conferences of the Red Cross and Red Crescent. In a resolution on protection of children in armed conflict, the 25th International Conference referred to the Geneva Conventions and the two Additional Protocols and recommended that “all necessary measures be taken to preserve the unity of the family”.
In a resolution on protection of the civilian population in period of armed conflict, the 26th International Conference demanded that “all parties to armed conflict avoid any action aimed at, or having the effect of, causing the separation of families in a manner contrary to international humanitarian law”.
Several treaties and other instruments indicate that in providing protection and assistance to displaced persons, the parties to the conflict must consider the condition of each person. As a result, the specific needs of children, and in particular unaccompanied children, expectant and nursing mothers, persons with disabilities and the elderly must be taken into account.
This is also recognized in military manuals, legislation and official statements.
Furthermore, it is supported by the practice of international organizations and international conferences.
It is stressed in practice that the primary responsibility for caring for internally displaced persons rests with the government concerned.
However, as the government is often not in control of zones where people are displaced, this responsibility includes an obligation to permit the free passage of humanitarian assistance to internally displaced persons (see also Rule 55). The evidence suggesting that the assistance of the international community, particularly UNHCR and the ICRC, may be sought includes practice in the context of both international and non-international armed conflicts, in particular that of the UN Security Council.
This practice indicates that it is not unlawful for the international community to provide assistance even if the displacement was illegal. This view is also supported by the Guiding Principles on Internal Displacement.