The term “war crimes” evokes a litany of horrific images—concentration camps, ethnic cleansing, execution of prisoners, rape, and bombardment of cities. These images correspond in many ways to the legal definitions of the term, but international law draws lines that do not in all ways match our sense of the most awful behavior.

War crimes are those violations of the laws of war—or international humanitarian law (IHL)—that incur individual criminal responsibility. While limitations on the conduct of armed conflict date back at least to the Chinese warrior Sun Tzu (sixth century b.c.e.), the ancient Greeks were among the first to regard such prohibitions as law. The notion of war crimes per se appeared more fully in the Hindu code of Manu (circa 200 b.c.e.), and eventually made its way into Roman and European law. The first true trial for war crimes is generally considered to be that of Peter von Hagenbach, who was tried in 1474 in Austria and sentenced to death for wartime atrocities.

By World War I, States had accepted that certain violations of the laws of war—much of which had been codified in the Hague Conventions of 1899 and 1907—were crimes. The 1945 Charter of the International Military Tribunal at Nuremberg defined war crimes as “violations of the laws or customs of war,” including murder, ill-treatment, or deportation of civilians in occupied territory; murder or ill-treatment of prisoners of war; killing of hostages; plunder of public or private property; wanton destruction of municipalities; and devastation not militarily necessary.

The 1949 Geneva Conventions, which codified IHL after World War II, also marked the first inclusion in a humanitarian law treaty of a set of war crimes—the grave breaches of the conventions. Each of the four Geneva Conventions (on wounded and sick on land, wounded and sick at sea, prisoners of war, and civilians) contains its own list of grave breaches. The list in its totality is: willful killing; torture or inhuman treatment (including medical experiments); willfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or civilian to serve in the forces of the hostile power; willfully depriving a prisoner of war or protected civilian of the rights of a fair and regular trial; unlawful deportation or transfer of a protected civilian; unlawful confinement of a protected civilian; and taking of hostages. Additional Protocol I of 1977 expanded the protections of the Geneva Conventions for international conflicts to include as grave breaches: certain medical experimentation; making civilians and nondefended localities the object or inevitable victims of attack; the perfidious use of the Red Cross or Red Crescent emblem; transfer of an occupying power of parts of its population to occupied territory; unjustifiable delays in repatriation of POWs; apartheid; attack on historic monuments; and depriving protected persons of a fair trial. Under the Geneva Conventions and Additional Protocol I, States must prosecute persons accused of grave breaches or hand them over to a State willing to do so.

The grave breaches provisions only apply in international armed conflicts; and they only apply to acts against so-called protected persons or during battlefield activities. Protected persons are, in general, wounded and sick combatants on land and sea, POWs, and civilians who find themselves in the hands of a state of which they are not nationals.

Most violations of the Geneva Conventions and Additional Protocols are not grave breaches. Of those not listed as grave breaches, many are still considered war crimes, although in those cases States do not have the same obligation to extradite or prosecute as they do for grave breaches. Other nongrave breaches are not war crimes, but simply illegal acts for which only the violating State is responsible under international law. To give one simple example, if the commander of a POW camp failed to keep a record of all disciplinary punishments (a violation of Article 96 of the Third Geneva Convention), he would likely not be committing a war crime—although some may disagree. Distinguishing among nongrave breaches to determine which are crimes is not an exact science, though it would seem that the more serious nongrave breaches do incur individual responsibility. (The U.S. military maintains that all violations of the laws of war, including those of the Geneva Conventions, are war crimes.)

Wartime atrocities not prohibited under the Geneva Conventions or Additional Protocol I may nonetheless be war crimes under the customary law rubric of “violations of the laws and customs of war” (the same phrase as in the Nuremberg Charter). For interstate conflicts, states agree that such war crimes include certain violations of the 1907 Hague Convention and Regulations, such as use of poisonous weapons, wanton destruction of cities not justified by military necessity, attacks on undefended localities, attacks on religious and cultural institutions, and plunder of public and private property. The Statute of the International Criminal Court (ICC) lists as war crimes for international conflicts not only the grave breaches of the Geneva Conventions, but some twenty-six serious violations of the laws and customs of war, most of which have been considered by States as crimes since at least World War II.

As for civil wars, unfortunately, international law today has fewer rules regulating the conduct of internal conflicts, which many States consider part of their domestic jurisdiction and, consequently, there is a shorter list of war crimes. Additional Protocol II of 1977, which contains basic rules for the conduct of internal conflicts, has no criminal liability provisions, and the reach of customary law war crimes is not as clear with respect to such wars as it is for international wars. The Statute of the International Criminal Tribunal for the Former Yugoslavia includes “serious violations of Common Article 3 of the Geneva Conventions” (the one article of the Geneva Conventions that addresses civil wars), as well as other rules to protect victims of armed conflict and basic rules on methods of warfare. The tribunal defined a serious violation as one that has grave consequences for its victims and breaks a rule protecting important values. This would presumably include violence to life or health (murder, ill-treatment, torture, mutilation, corporal punishment, rape, enforced prostitution, indecent assault), summary executions, hostage taking, collective punishment, and pillage. This list, while shorter than the list of grave breaches or other interstate war crimes, nonetheless would cover some of the most horrific acts during recent conflicts. The Statute of the International Criminal Tribunal for Rwanda includes as war crimes serious violations of Common Article 3 as well as serious violations of Additional Protocol II. The Statute of the ICC lists as war crimes for internal conflicts four serious violations of Common Article 3 (violence to life and person, outrages upon personal dignity, hostage taking, and summary executions), as well as twelve serious violations of the laws and customs of war (e.g., attacks on civilians, pillage, rape, or mutilation).

Though perhaps an obvious point, it should be noted that the laws of war only cover atrocities during armed conflict. They exclude many of the worst abuses of this century, such as Stalin’s purges and destruction of the Kulaks, most of the Khmer Rouge’s terror, and Mao’s forced collectivizations. While these atrocities are international crimes—crimes against humanity, or, in some cases, genocide—they are not war crimes.

The definitional nexus of war crimes to armed conflict means that the atrocities against civilians committed by actors identified as terrorists do not always fit neatly within the existing categories of war crimes. As a general matter, it can be argued that the war paradigm and war crimes moniker simply should not apply to most of their actions, as they are engaged not in a war (interstate or civil), where international law accepts much belligerent activity as lawful, but rather in a criminal enterprise in which all acts are illegal. In this sense neither the Geneva Conventions nor customary law regarding war crimes captures the nature of their crimes. Insofar as terrorist activities by non-State actors are committed as part of a more paradigmatic interstate or civil war, e.g., an insurgent group working for one side blows up a civilian bus, these could well constitute grave breaches of the Geneva Conventions or other violations of the laws and customs of war, including those applying to civil conflicts. The United States government seems to hold that some terrorist acts, even those not associated with existing interstate or civil wars, are indeed “violations of the laws and customs of war.” It is currently trying some suspected terrorists before military commissions at Guantanamo Bay for various offenses that it concludes are, in the words of an instruction to the commissions, “violations of the law of armed conflict or offenses that, consistent with that body of law, are triable by military commissions.” The foregoing considerations make any determination whether the attacks on New York, Bali, Madrid, or elsewhere by al-Qaeda are war crimes a matter of debate. The far simpler legal characterization is to identify them as crimes against humanity, which lacks any required nexus to armed conflict.

Finally, the creation of a body of law criminalizing certain violations of the laws of war does not mean that war criminals will actually be prosecuted. This remains a matter for States and, increasingly, the United Nations and other international organizations. The Geneva Conventions require all parties to search for and either extradite or try all persons suspected of having committed grave breaches. And international law gives all States the legal right to prosecute war criminals under the theory of universal jurisdiction. While States have at times prosecuted war criminals (e.g., the U.S. trial of the My Lai offenders), the more pervasive pattern, despite the obligations of the Geneva Conventions, is either mere administrative punishment or impunity. The ad hoc tribunals for Yugoslavia and Rwanda have jurisdiction over both grave breaches of the Geneva Conventions and other crimes committed in these particular conflicts, and the ICC, as noted, has jurisdiction over most war crimes.

Towns or cities that are undefended or open (the terms are used more or less synonymously) have been the subject of regulation, and confusion, in international law and military practice since at least the late nineteenth century.

The laws of war specify that undefended places should not be attacked. The 1907 Hague Regulations on Land Warfare, still formally in force, state in Article 25: “The attack or bombardment, by whatever means, of towns, villages, dwellings or buildings which are undefended is prohibited.” Similar language in the 1907 Hague Convention deals with naval bombardment.

The term undefended can be interpreted to encompass all places that are not fortified and do not have an active military presence. In this logic, even a town that is in the interior of a country at war and which has extensive armaments factories or military communications systems could count as undefended. However, the view that such places should be immune from attack has generally been rejected by military planners, especially by airmen, and should not be taken as indicative of prevailing law.

In practice, the words undefended and open have been defined restrictively, to mean simply places declared to be open for entry and occupation by an adverse party without resistance. In this view, the core meaning of the rule prohibiting attacks on undefended towns is simply that a town in a war zone that has declared itself ready to accept the entry of the adversary’s army may not be bombed or subjected to artillery attack. This is widely agreed to be the most persuasive interpretation of the practical meaning and original intention of Article 25 of the 1907 Regulations. This restrictive view has been confirmed in the 1977 Additional Protocol I to the Geneva Conventions, Article 59, which says that a belligerent may declare as a nondefended locality “any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party.”

There have been many cases of towns being declared “open” in this sense. When French forces abandoned Paris in June 1940, the Germans were notified that the city was open for their entry. In June 1944 the German command in Italy asked the Allies to “confirm” the status of Rome as an open city, and then made a unilateral declaration to that effect, followed by surrender of the city to the Allies. Sometimes the concept of open cities has been used differently, to refer to the idea that certain towns should be spared bombardment, even if they are not open to occupation—for example, if they are far from the front line.

Most destructive attacks in modern war have been against cities that were not undefended in the sense of open to occupation by the adversary. This has strengthened the pressure to develop other bases for protecting cities, and their inhabitants, from the ravages of modern war.

The term open cities has been used by the UN High Commissioner for Refugees (UNHCR) with a completely different meaning: it refers to an initiative in Bosnia-Herzegovina following the 1995 Dayton peace agreement to reward local authorities who declare their Opstina, or district, open and are committed to the return of minorities to their prewar homes.

Soldiers have rights, insofar as they are members of the armed forces, as defined in international humanitarian law (IHL). They are known as combatants and have the right to participate directly in hostilities. This means, in practical terms, that combatants are entitled to attack enemy forces, kill or injure them, and destroy property as part of military operations—activities that if done not in wartime or not by combatants would all be criminal behavior. Thus, if captured, combatants must be treated as prisoners of war under the Third Geneva Convention of 1949 rather than as criminals, because as combatants they are legally entitled to fight.

It is up to a State to determine by its own law, however, who is a member of its armed forces. This has particular significance for the determination of when reservists, common in many countries, become members and thus combatants within the meaning of IHL. Once a person is a member of the armed forces of a State it is irrelevant whether that State describes the duties that he/she is to perform as combat or noncombat duties, or whether the members of the armed forces are conscripted or are volunteers. It is also irrelevant whether the State describes those armed forces as special forces, commandos, presidential guards, or by any other name. Where, however, a State incorporates its armed law enforcement agencies (such as its police force) into its armed forces, it must notify the other party to the conflict, for the simple reason that such bodies would not normally be considered to be part of the armed forces of a State, and so not liable to attack as combatants. Certain armed formations in certain states, such as paramilitaries, may or may not be members of the armed forces within the meaning of IHL, depending on how the State’s own law treats such paramilitary forces.

According to the 1977 Additional Protocol I to the Geneva Conventions, States are under an obligation not to recruit child soldiers under the age of 15 into their armed forces and to take all feasible measures to ensure that children do not take a direct part in hostilities.

The definition of combatants beyond those who fight for the regular armed forces of a State is regulated by IHL.

IHL treats all combatants alike, except for two distinct classifications. One distinction is between officers and other ranks, and is relevant only to certain obligations imposed upon the capturing State in respect to prisoners of war, such as the prohibition against forcing officers to work. The second distinction, between commanders and others, is extremely important since commanders have specific duties placed on them by Additional Protocol I to ensure that their subordinates are aware of their obligations under IHL and to suppress any breaches of these obligations. In addition, commanders are required to prevent any such violation if they have become aware that their subordinates are going to breach IHL. In this way, a commander has command responsibility for the actions of his subordinates, even though he may not directly have ordered the violations.

Captured combatants are entitled to be treated as prisoners of war even if it is alleged that they have committed war crimes. In certain conflicts State leaders have declared that captured air crew are “war criminals” and are not to be treated as prisoners of war. This is contrary to IHL, although a State is entitled and has the right to investigate war crimes, even those alleged to have taken place among POWs. In internal armed conflict, insurgents are not entitled to POW status under the Third Geneva Convention or Additional Protocol I since the conflict is not international. Accordingly, they may be tried for sedition, treason, rebellion, murder, or other crimes under the domestic law of their State; nonetheless, under Article 3 common to the four Geneva Conventions, and notwithstanding that they may be tried by their State, they retain certain minimal protections under IHL, and in particular, may not be summarily executed and must receive the benefit of a regular trial.

The Geneva Conventions of 1949 recognized that “military necessity” has its limits and that combatants, as well as civilians, who are wounded or held as prisoners of war hors de combat should not be military targets and should be treated with dignity at all times. The conventions also specify that both civilians and combatants who are sick and wounded should be treated equally, and that neither should be given differential treatment.

The sick and wounded, Article 12 common to the First and Second Geneva Conventions of 1949 states, “shall be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subject to torture or to biological experiments; they shall not willfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created.”

History is replete with the accounts of sick and wounded combatants and civilians who have been physically and psychologically abused by their captors. One of the most horrific accounts of the abuse of prisoners during World War II took place in a Japanese-run germ warfare factory on the Manchurian Plain. Japanese doctors at the secret facility injected captured Chinese and Korean soldiers, many of whom had been wounded in battle, with bubonic plague, cholera, syphilis, and other deadly germs to compare the resistance to disease of various nationalities and races. Hundreds of prisoners of war died as a result of the biological experiments and hundreds more were killed by the Japanese when they fled the laboratory.

During the siege of the eastern Croatian city of Vukovar in November 1991, troops with the Yugoslav People’s Army (JNA) and Serb irregulars removed hundreds of patients and staff from the municipal hospital and executed them at the end of a ravine on the Ovcara collective farm, nine kilometers south of the city. Five years later, forensic investigators, assembled by Physicians for Human Rights (PHR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY), exhumed two hundred bodies from a mass grave on the Ovcara farm. Some of the bodies were dressed in smocks and white clogs, garb common to hospital employees in Europe. Other bodies bore signs of previous injuries: a thigh bandaged in gauze or a broken arm set in a plaster cast and sling. A pair of broken crutches lay on top of one body. Another had a catheter dangling from its pelvis. By May 1998, the forensic scientists had identified ninety-one of the bodies. The ICTY, in the meantime, had indicted the former major of Vukovar, Slavko Dokmanovic, and three JNA officers—Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin—for the massacre on the Ovcara farm.

The term crimes against humanity has come to mean anything atrocious committed on a large scale. This is not, however, the original meaning nor the technical one. The term originated in the 1907 Hague Convention preamble, which codified the customary law of armed conflict. This codification was based on existing State practices that derived from those values and principles deemed to constitute the “laws of humanity,” as reflected throughout history in different cultures.

After World War I, the Allies, in connection with the Treaty of Versailles, established in 1919 a commission to investigate war crimes that relied on the 1907 Hague Convention as the applicable law. In addition to war crimes committed by the Germans, the commission also found that Turkish officials committed “crimes against the laws of humanity” for killing Armenian nationals and residents during the period of the war. The United States and Japan strongly opposed the criminalization of such conduct on the grounds that crimes against the laws of humanity were violations of moral and not positive law.

In 1945, the United States and other Allies developed the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal (IMT), sitting at Nuremberg, which contained the following definition of crimes against humanity in Article 6(c):

“Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

The Nuremberg Charter represents the first time that crimes against humanity were established in positive international law. The International Military Tribunal for the Far East, at Tokyo, followed the Nuremberg Charter, as did Control Council Law No. 10 of Germany, under which the Allies prosecuted Germans in their respective zones of occupation. Curiously, however, there has been no specialized international convention since then on crimes against humanity. Still, that category of crimes has been included in the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as in the statute of the International Criminal Court (ICC). In fact, there are eleven international texts defining crimes against humanity, but they all differ slightly as to their definition of that crime and its legal elements. However, what all of these definitions have in common is: (1) they refer to specific acts of violence against persons irrespective of whether the person is a national or non-national and irrespective of whether these acts are committed in time of war or time of peace, and (2) these acts must be the product of persecution against an identifiable group of persons irrespective of the make-up of that group or the purpose of the persecution. Such a policy can also be manifested by the “widespread or systematic” conduct of the perpetrators, which results in the commission of the specific crimes contained in the definition.

The list of the specific crimes contained within the meaning of crimes against humanity has been expanded since Article 6(c) of the IMT to include, in the ICTY and the ICTR, rape and torture. The statute of the ICC also expands the list of specific acts. In particular, the ICC statute adds the crimes of enforced disappearance of persons and apartheid. Further, the ICC statute contains clarifying language with respect to the specific crimes of extermination, enslave- ment, deportation or forcible transfer of population, torture, and forced pregnancy.

To some extent, crimes against humanity overlap with genocide and war crimes. But crimes against humanity are distinguishable from genocide in that they do not require an intent to “destroy in whole or in part,” as cited in the 1948 Genocide Convention, but only target a given group and carry out a policy of “widespread or systematic” violations. Crimes against humanity are also distinguishable from war crimes in that they not only apply in the context of war—they apply in times of war and peace.

Crimes against humanity have existed in customary international law for over half a century and are also evidenced in prosecutions before some national courts. The most notable of these trials include those of Paul Touvier, Klaus Barbie, and Maurice Papon in France, and Imre Finta in Canada. But crimes against humanity are also deemed to be part of jus cogens—the highest standing in international legal norms. Thus, they constitute a non-derogable rule of international law. The implication of this standing is that they are subject to universal jurisdiction, meaning that all States can exercise their jurisdiction in prosecuting a perpetrator irrespective of where the crime was committed. It also means that all States have the duty to prosecute or extradite, that no person charged with that crime can claim the “political offense exception” to extradition, and that States have the duty to assist each other in securing evidence needed to prosecute. But of greater importance is the fact that no perpetrator can claim the “defense of obedience to superior orders” and that no statute of limitation contained in the laws of any State can apply. Lastly, no one is immune from prosecution for such crimes, even a head of State.

The sieges or bombardments of Leningrad, Dresden, Hiroshima, Vukovar, Sarajevo, and Srebrenica caused huge civilian losses and suffering. However, most attempts to devise schemes to protect particular places from the horrors of war have had limited success.

Safety zones is an unofficial term covering a wide variety of attempts to declare certain areas off-limits for military targeting. The Fourth Geneva Convention of 1949 and Additional Protocol I provide for three main types: hospital zones, neutralized zones, and demilitarized zones. These treaty arrangements require consent between belligerents, depend on complete demilitarization, and do not specify any arrangements for defending the areas. They have been used only occasionally.

In post–Cold War conflicts, the UN Security Council or other bodies rather than belligerents have proclaimed safety zones ad hoc. Such areas have been variously called “corridors of tranquillity,” “humanitarian corridors,” “neutral zones,” “protected areas,” “safe areas,” “safe havens,” “secure humanitarian areas,” “security corridors,” and “security zones.” Two motivations have been the safety of refugees and the prevention of massive new refugee flows. Military activity has generally continued within the areas. Unlike self-declared “undefended towns,” safety zones are not envisaged as being open for occupation by the hostile power.

In northern Iraq after the 1991 Gulf War, the Western powers, having encouraged an abortive Kurdish uprising, established a safe haven enabling some 400,000 Kurdish refugees who had fled to the Turkish border to return. UN agencies subsequently took charge.

The UN Security Council established six safe areas in Bosnia-Herzegovina in 1993 to protect the inhabitants of six towns from Bosnian Serb forces besieging them, but it never defined the geographical limits or its commitment to protect them. The Serbs complained the Bosnians were using these zones to launch attacks against them; yet the zones could not have been neutralized because the inhabitants were unwilling to entrust their security to international forces. In July 1995 UN troops watched as Bosnian Serb forces conquered the safe areas of Srebrenica and Zepa and committed appalling atrocities.

Three-quarters of the way through the 1994 genocide in Rwanda, the Security Council decided on the establishment of secure humanitarian areas, but no country provided troops. Instead, when the worst of the killing was over, the council authorized France to establish by force a zone that ultimately provided refuge for Hutus who had organized the genocide, casting further doubt on the idea.

Overall, safety zones have saved many lives, but establishing them, preventing military activity in them, and protecting them from external assault is difficult and demanding. Safety zones rarely provide an enduring haven from the horrors of war.

When a belligerent party is hurt by conduct on the part of its adversary that it regards as a grave breach or systematic encroachment of the laws of armed conflict, one possibility is to retaliate by means of an action that itself violates the same body of law. While recourse to such retaliatory action can be arbitrary and in total disregard of any constraints, rules of customary law have developed in the past that provide the limits within which retaliation could be regarded as a legitimate reprisal. The main elements of this customary “right of reprisal” are: subsidiarity (failure of all other available means), notice (formal warning of the planned action), proportionality (the damage and suffering inflicted on the adverse party not to exceed the level of damage and suffering resulting from its unlawful conduct), temporary character (termination of the reprisal when the adversary stops violating the law).

A reprisal may be “in kind” (violating the same or a narrowly related rule of the laws of armed conflict) or “not in kind” (violating a nonrelated rule). In either case, the reprisal need not and usually cannot be directed against those persons on the adverse side who are responsible for the unlawful conduct, and hence tends mainly to affect people who are “innocent” of that conduct. Also, the adversary often regards an alleged reprisal as a plainly unlawful act that in turn justifies reprisals, leading to a spiral of increasingly serious damage and suffering.

These features have led to a trend to ban reprisals wherever possible. As a result, all four Geneva Conventions of 1949 categorically prohibit reprisals against the persons and objects they are designed to protect. Likewise, Article 20, which concludes the part of Additional Protocol I of 1977 on the wounded, sick, and shipwrecked, prohibits reprisals against the persons and objects protected by that part.

While these bans are generally accepted as entirely justified, the provisions in Articles 51 through 55 of Additional Protocol I prohibiting reprisals against civilians and civilian objects are highly controversial, and some States have entered reservations to their treaty ratifications. A recent example of a reserving State is the United Kingdom, which has formulated its reservation in terms that would permit it to undertake customary “in kind” reprisals.

Additional Protocol II of 1977 is silent on the matter of reprisals. This should not however be interpreted as a right for parties to an internal armed conflict to resort to retaliatory action; the better view is that essential requirements of humanity accepted for international armed conflict apply by way of analogy in internal armed conflicts as well.

Two emblematic figures, the exile and the refugee, loom large in our consciousness at the beginning of this new century as at the end of the last. Vast refugee flows have become a feature of the contemporary world. Part of this can be attributed to the fact that it is easier to cross borders now than it was, say, 150 years ago. People have always wanted to move away from danger zones; today, whatever the risks, they have the means to do so. As a result, when Hurricane Mitch devastated Honduras in 1998, many predicted that within a matter of months Honduran refugees would pour into the United States.

The Honduran refugees were fleeing a natural disaster and, as such, were something of an anomaly, since refugees from natural disasters constitute only a small percentage of the 34 million refugees and displaced people in the world. When most people think of refugees they usually think of the victims of political repression, as in East Timor, religious persecution, as in Tibet, or of civilians fleeing a war zone in which they have become the targets, as in a dozen conflicts from the Democratic Republic of Congo to Kosovo.

Of course, there is nothing new about repression, and the question of whether war has grown more barbarous in the twentieth century remains a controversial one. Those who, in the aftermath of World War II, devised the international humanitarian law (IHL) on refugees seemed to have believed that it had. So do those who have spent time in such killing zones as Bosnia, South Sudan, and the Great Lakes region of Africa. There, civilians are more often than not the preferred targets of the belligerents, and every villager caught in these maelstroms is, when viewed in a certain light, a potential refugee.

Perhaps this is why Sadako Ogata, the United Nations High Commissioner for Refugees, once observed that “refugees are the symptoms of the ills of an age”—our age. In almost every crisis that has plagued or baffled us since the end of the Cold War, from Tajikistan to Burundi, the refugee issue has been at the center. There has been no escaping it, and, it seems, no resolving it.

This is not because of an absence of laws, but, rather, a lack of implementation. Indeed, if the political will of the powerful nations of the world matched the legal protections that already exist for refugees, many of the cruelest tragedies of the last part of the twentieth century might have been greatly diminished. A raft of treaties passed in the aftermath of World War II, and, half a century later, the accumulating weight of customary law guarantees refugee rights. Unlike in the case, say, of internally displaced persons (the distinction is that a refugee is a person who crosses an international border), refugees enjoy a wide array of rights and protections including the right to certain kinds of legal aid and material assistance. Compared to what should be, the situation of refugees in the world today is appalling; compared to what it would be without IHL, it is at least not hopeless. The most important laws concerning refugees are the Fourth Geneva Convention of 1949, the 1977 First Additional Protocol to the Geneva Conventions, and the 1951 UN Convention Relating to the Status of Refugees. The Geneva Conventions required a certain humane standard of treatment for civilians who do not enjoy diplomatic status. The Fourth Convention granted refugees the right not to be returned to the country where they faced danger or could legitimately claim that they would be subject to religious or political persecution. Additional Protocol I extended the standard for civilian protection set in the 1949 Geneva Conventions to include all civilians regardless of their nationality.

The UN Convention Relating to the Status of Refugees defines who refugees are and how they are to be treated. For the most part, the guarantees the convention grants are the basic human rights outlined in other international legal instruments. Refugees are not to be returned to the place where they face persecution, nor, except on grounds of national security, are they to be expelled without due process. They are not to be treated as illegal aliens (a key right, particularly in Western Europe and North America where the authorities routinely try to claim that people claiming refugee status are really economic migrants). Their right to move about in their country of asylum is not to be unnecessarily restricted, and they are to be given identity papers if they do not have them.

In a world awash in refugees, where people in rich countries feel overwhelmed by the press of economic migrants, legal and illegal, and where people in poor countries in areas adjacent to conflict zones have neither the resources nor the expertise to deal with vast refugee flows (2 million Rwandan refugees crossed the border into Zaire in less than a week in the summer of 1994), this has meant that where refugees have been concerned, the situation has grown more and more difficult. In particular, the burdens on the main international organization charged with protecting refugees, the Office of the UN High Commissioner for Refugees, have become excruciating. More generally, the gap between the law and realities on the ground is greater in the area of refugee rights than almost any other. Perhaps that gap is an emblem of failure. But many refugee advocates say that it gives us the means actually to make the ideals of refugee protection a reality, whereas if no such body of law existed, and the idea of protection had not been enshrined within it, the situation would be even more dire than it is.