Cross-border Population Movements

1. Cross-border Population Movements 5.40

2. Overview Introduction Context of regional conflicts and cross border population movements International law framework governing cross border movements of foreign combatants and associated civilians Adult foreign combatants and DDR issues in host countries Foreign children associated with armed forces and groups and DDR issues in host countries Civilian family members or other dependants of combatants and DDR issues in host countries Cross-border abductees and DDR issues in host countries Planning for foreign combatants� voluntary repatriation and incorporation in cross-border DDR operations Foreign combatants and DDR issues upon return to the country of origin Foreign former combatants who choose not to repatriate � status and solutions Conclusion

3. Introduction Combatants and associated civilians moving across international borders Regional and international dimensions of conflicts and the impact on population movements Repatriation and sustainable reintegration are needed for both combatants and civilians Obligations under international law in determining the appropriate treatment of the population groups

4. Context of Regional Conflicts and Cross-border Population Movements Lines of conflict frequently run across state boundaries. Ethnic, cultural, political and military ties that are not confined to one nation-state. Combatants who cross borders may have a range of motives, may be mixed in with civilians and their status may not be readily apparent � State and international responses need to take such complexities into account. DDR processes need a stronger and more consistent cross-border focus, involving both host countries and countries of origin and benefiting both national and foreign combatants.

5. International Law Framework Governing Cross Border Movements of Foreign Combatants and Associated Civilians United Nations Charter Article 2(4) The Law of Neutrality The Hague Convention of 1907 respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land International Humanitarian Law Article 4(B)2 of the Third Geneva Convention of 1949 Human Rights Law The 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment The 1989 UN Convention on the Rights of the Child and the 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict Refugee Law 1951 UN Convention and 1967 Protocol relating to the Status of Refugees These different areas of law provide grounds for the identification and separation of foreign combatants from civilians who cross an international border, as well as for the disarmament and internment of foreign combatants until either they can be repatriated or another solution can be found at the end of the conflict. Under Article 2(4) of the UN Charter, States have an obligation to �refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations� The law of neutrality requires neutral states to disarm foreign combatants, separate them from civilian populations, intern them at a safe distance from the conflict zone and provide humane treatment until the end of the war, in order to ensure that they no longer pose a threat or continue to engage in hostilities. In accordance with article 4(B)2 of the Third Geneva Convention of 1949 relative to the Treatment of Prisoners of War, foreign combatants interned by neutral states are entitled to treatment and conditions of internment afforded to prisoners of war under the Convention. A refugee is defined in the 1951 UN Convention and 1967 Protocol relating to the Status of Refugees as a person who: is outside the country of origin has a well-founded fear of persecution because of race, religion, nationality, membership of a particular social group or political opinion is unable or unwilling to avail him or herself of the protection of that country, or to return there, owing to the well-founded fear of persecution. These different areas of law provide grounds for the identification and separation of foreign combatants from civilians who cross an international border, as well as for the disarmament and internment of foreign combatants until either they can be repatriated or another solution can be found at the end of the conflict. Under Article 2(4) of the UN Charter, States have an obligation to �refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations� The law of neutrality requires neutral states to disarm foreign combatants, separate them from civilian populations, intern them at a safe distance from the conflict zone and provide humane treatment until the end of the war, in order to ensure that they no longer pose a threat or continue to engage in hostilities. In accordance with article 4(B)2 of the Third Geneva Convention of 1949 relative to the Treatment of Prisoners of War, foreign combatants interned by neutral states are entitled to treatment and conditions of internment afforded to prisoners of war under the Convention. A refugee is defined in the 1951 UN Convention and 1967 Protocol relating to the Status of Refugees as a person who: is outside the country of origin has a well-founded fear of persecution because of race, religion, nationality, membership of a particular social group or political opinion is unable or unwilling to avail him or herself of the protection of that country, or to return there, owing to the well-founded fear of persecution.

6. Adult Foreign Combatants and DDR Issues in Host Countries Context & Key agencies Key actions Coordination Advocacy Security screening and identification of foreign combatants Methods of identifying foreign combatants Self-identification Appearance Security screening questions and luggage searches Identification by refugees and local communities Perpetration of cross-border armed incursions and attacks Separation from civilians Disarmament Demobilization Key agencies Key international agencies which could assist governments with issues relating to adult combatants include the Department of Peacekeeping Operations (DPKO), International Committee of the Red Cross (ICRC), UNHCR, UN High Commission on Human Rights (UNHCHR), UN Development Programme (UNDP), World Food Programme (WFP), Office for the Coordination of Humanitarian Affairs (OCHA), International Labour Organization (ILO) and International Organization for Migration (IOM).Key agencies Key international agencies which could assist governments with issues relating to adult combatants include the Department of Peacekeeping Operations (DPKO), International Committee of the Red Cross (ICRC), UNHCR, UN High Commission on Human Rights (UNHCHR), UN Development Programme (UNDP), World Food Programme (WFP), Office for the Coordination of Humanitarian Affairs (OCHA), International Labour Organization (ILO) and International Organization for Migration (IOM).

7. Key actions (Cont.) Internment Nature of Standards of Third Geneva Convention Additional Protocol II Possible assistance by the international community to support host countries in internment initiatives Food Health care Non-food items Registration and documentation Skills training Recreation Re-establishing family links Monitoring Host communities

8. Key actions (Cont.) Internment (Cont.) Nationality issues Considerations relating to female combatants Redressing incorrect internment decisions Exit strategies Mercenaries: a special case Definition Issues concerning mercenaries

9. Foreign Children Associated with Armed Forces and Groups and DDR Issues in Host Countries Context & Key agencies Key actions Agreement with host country government on status and treatment of foreign children associated with armed forces and groups Identification of children among foreign combatants Separation of foreign children associated with armed forces and groups Demobilization, rehabilitation and reintegration Prevention of military recruitment Specific needs of girls

10. Civilian Family Members or Other Dependants of Combatants and DDR Issues in Host Countries Context & Key agencies Key actions Providing safe asylum and accommodation Maintaining family links with foreign combatants Preserving the civilian and humanitarian character of asylum

11. Cross-border Abductees and DDR Issues in Host Countries Context & Key agencies Key actions Identification, release, finding durable solutions Eligibility for DDR Issues relating to women and girls Local integration and empowerment Re-establishing family links

12. Planning for Foreign Combatants� Voluntary Repatriation and Incorporation in Cross-Border DDR Operations Regional dimensions to be taken into account in setting up DDR programmes Repatriation agreements Information and sensitization campaigns Identification of foreign combatants and disarmament Voluntary repatriation Promotion of family unity during repatriation Repatriation movements Considerations relating to foreign children associated with armed forces and groups

13. Foreign Combatants and DDR Issues Upon Return to the Country of Origin Assurances upon return legal security physical security material security Incorporation in DDR programmes Reintegration

14. Monitoring Non-discrimination Amnesties and guarantees Respect for human rights Access to land Property recovery Protection from landmines and unexploded ordnances Protection from stigmatization Monitoring: Non-discrimination: Ensuring that returned former combatants and their families/other dependants are not targeted for harassment, intimidation, extra-judicial punishment, violence, denial of fair access to public institutions or services, or discriminated against in the enjoyment of any basic rights or services (e.g., health, education, shelter). Amnesties and guarantees: Returned former combatants and their families should benefit from any amnesties in force for the population generally or for returnees specifically. Amnesties may cover, for example, matters relating to having left the country of origin and having found refuge in another country, draft evasion and desertion, as well as the act of performing military service in unrecognized armed groups. Amnesties for international crimes, such as genocide, crimes against humanity, war crimes and serious violations of international humanitarian law are not supported by the UN. Former combatants may legitimately be prosecuted for such crimes, but they must receive a fair trial in accordance with judicial procedures. Respect for human rights: In common with all other citizens, the human rights and fundamental freedoms of former combatants and their families must be accorded full respect. Access to land: Equitable access to land for settlement and agricultural use should be promoted. Property recovery: Promoting restitution of land or other property which returned former combatants and their families may have lost or left behind. UN missions should support governments in setting up dispute resolution procedures on issues such as property recovery. The specific needs of women, including widows of former combatants, should be taken into account, particularly where traditional practices and laws discriminate against women�s rights to property ownership and inheritance. Protection from landmines and unexploded ordnances: Main areas of return may be at risk from landmines and unexploded ordnances that have not yet been cleared. Awareness-raising, mine clearance and other efforts should therefore include all members of the community. Protection from stigmatization: Survivors of sexual abuse and girls and women who have had to bear their abusers� children may be at risk of rejection from their communities and families. There may be a need for specific community sensitization to combat this problem, as well as efforts to promote empowerment of survivors through inclusion in socio-economic opportunities Monitoring: Non-discrimination: Ensuring that returned former combatants and their families/other dependants are not targeted for harassment, intimidation, extra-judicial punishment, violence, denial of fair access to public institutions or services, or discriminated against in the enjoyment of any basic rights or services (e.g., health, education, shelter). Amnesties and guarantees: Returned former combatants and their families should benefit from any amnesties in force for the population generally or for returnees specifically. Amnesties may cover, for example, matters relating to having left the country of origin and having found refuge in another country, draft evasion and desertion, as well as the act of performing military service in unrecognized armed groups. Amnesties for international crimes, such as genocide, crimes against humanity, war crimes and serious violations of international humanitarian law are not supported by the UN. Former combatants may legitimately be prosecuted for such crimes, but they must receive a fair trial in accordance with judicial procedures. Respect for human rights: In common with all other citizens, the human rights and fundamental freedoms of former combatants and their families must be accorded full respect. Access to land: Equitable access to land for settlement and agricultural use should be promoted. Property recovery: Promoting restitution of land or other property which returned former combatants and their families may have lost or left behind. UN missions should support governments in setting up dispute resolution procedures on issues such as property recovery. The specific needs of women, including widows of former combatants, should be taken into account, particularly where traditional practices and laws discriminate against women�s rights to property ownership and inheritance. Protection from landmines and unexploded ordnances: Main areas of return may be at risk from landmines and unexploded ordnances that have not yet been cleared. Awareness-raising, mine clearance and other efforts should therefore include all members of the community. Protection from stigmatization: Survivors of sexual abuse and girls and women who have had to bear their abusers� children may be at risk of rejection from their communities and families. There may be a need for specific community sensitization to combat this problem, as well as efforts to promote empowerment of survivors through inclusion in socio-economic opportunities

15. Foreign Former Combatants Who Choose Not to Repatriate � Status and Solutions Refugee status Durable solutions Repatriation Local integration Resettlement Conducting refugee status determination Timing and sequence of applications for refugee status Requirements for refugee status for foreign former combatants Genuine and permanent renunciation of military activities Exclusion from refugee protection

16. Foreign former combatants who are accorded refugee status Foreign former combatants who are excluded from protection as refugees Foreign former combatants who do not meet the criteria for refugee status and are not in need of international protection

17. Conclusion International law framework: Treat the various population groups involved in cross-border movements, both in host countries and countries of origin, in accordance with applicable international law.

18. Conclusion (cont.) Inter-agency framework: No single agency has the sole mandate for issues relating to cross-border movements of combatants, but all have an interest in ensuring that these issues are properly addressed and that States abide by their international obligations. Therefore DDR-related processes (identification, disarmament, separation, internment, demobilization, repatriation/other durable solutions and reintegration of combatants, as well as building state capacity in host countries and countries of origin) must be addressed within an inter-agency framework.

19. Conclusion (cont.) Regional dimensions of DDR: Regional dimensions should be properly addressed in designing and implementing DDR programmes. DDR programmes should be open to all combatants who have taken part in a conflict, regardless of their nationality and whether or not they have crossed an international border. Close cooperation and linkages should be established between all DDR programmes in a region to ensure programming coherence.