A Green Light Turning Red? The Potential Influence of Human Rights on Developing Customary Legal Protection Against ...

Human Rights & International Legal Discourse (HR&ILD)

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Year
2018
Volume
12
Number
1
Page
62
Language
English
Court
Reference
D. CASALIN, “A Green Light Turning Red? The Potential Influence of Human Rights on Developing Customary Legal Protection Against Conflict-Driven Displacement”, HRILD 2018, nr. 1, 62-78

Abstract

Globally, armed conflict remains a major driver of mass population displacement – a key humanitarian concern. Legal protection from displacement in international humanitarian law (IHL) remains limited to specific instances, as displacement was traditionally viewed as an inevitable side effect of conflict (i.e. a ‘green light’ approach). However, it can be questioned whether this addresses the grave impact of displacement on civilians, especially on the scale existing today , and whether divergence on this issue between the IHL of international armed conflict (IAC) and non-international armed conflict (NIAC) is warranted. It has been claimed that customary IHL may be developing towards filling protection gaps through a more general independent prohibition on displacement caused by unlawful acts – particularly regarding internal displacement caused by coercion in a NIAC context. Such developments would overturn the traditional ‘green light’ presumption and indicate development of customary IHL towards a presumption of protection (i.e. a ‘red light’ approach). In light of the relationship between international humanitarian and human rights law, as well as the de facto role of international human rights mechanisms in applying international law in armed conflict, this article systematically analyzes the case law of these mechanisms to determine whether it evidences further development of customary IHL protection against displacement. It is found that although this case law does not overall indicate the development of an independent prohibition on displacement caused by unlawful acts in the conduct of hostilities, it does appear to confirm a broadening of the prohibition on ordering internal displacement in NIAC.