Solutions
In light of these apparent problems many analysts have argued that the current safe haven policy should be scrapped. Refugee law specialists like Hathaway and Neve have argued that the right to remain is based on a fallacy. They argue that safe havens have failed to offer surrogate protection and hence must no longer be used because they have been invoked to legitimize non-entrée policies. Their two-fold proposal to reform the refugee system centers on asylum policy: firstly, the temporary nature of asylum has to be highlighted to send a clear signal to Northern countries that asylum is not a back door to immigration; secondly, interest-convergent groups should be set up developing a common but differentiated responsibility towards refugees. The first part of this proposal seems very conducive to ameliorating access to third countries for refugees. However, Anker, Fitzpatrick and Shacknove have criticized the second aspect of the policy reform as moving asylum-seekers from the realm of law to that of political bargaining. Furthermore, even though Hathaway & Neve acknowledge that IDP’s suffer ‘more severely than refugee communities’, their solution centers on the restructuring of asylum policies, a policy which offers no protection to IDPs. The mere reliance on the reform of the asylum system is not sufficient to deal with the sheer numbers of people in need of protection, especially as we have seen third countries increasingly retracting from their legal obligations to provide asylum. It does not protect all the individuals who do not fall under the rigid category of refugees. A. Arulanantham credibly argues that safe haven policy should not be completely abandoned as a tool for protection. There seems to be a gap in the refugee protection system that could be successfully filled by a restructured safe haven policy closer to its original 1949 definition.
We have seen in our analysis of the case-studies that the two major reasons why recent safe haven operations have failed in protecting would-be refugees is based on the fact that they were neither demilitarized nor consent based. Demilitarization Future safe haven operations must be demilitarized from the outset, as they will only be respected by the parties involved if they are clearly neutral and civilian. This is obviously not easy to implement in cases of civil wars and ethnic conflict when fighters do not wear uniforms or tend to hide among civilians. Nevertheless there are some concrete steps that can be taken to ensure that the safe area stays a purely civilian area. The first step is to disarm anybody entering the delimited zone. This simple step has too often been ignored as in Rwanda where the French made no attempts to demilitarize the Hutus, or in Bosnia where the resolutions concerning safe havens never contained a demilitarization clause. The second step is that safe areas should be restricted to women, children and elderly people in cases where the situation is too opaque to judge whether individuals are fighters or civilians. Consent If a safe haven operation takes place it has to be based on the consent of the parties involved. The operation has to be clearly defined and understood by all parties. As K. Landgren points out, it would be preferable if safe zones were negotiated at ground level, with the necessary familiarity with local conditions.
The case of Sri Lanka and its experience with Open Relief Center is very useful to understand the importance of consent. Open Relief Center’s are different from safe areas because safety is not supposed to be guaranteed, they are “temporary places where displaced persons on the move can freely enter or leave and obtain essential relief assistance in a relatively safe environment”. In the case of Sri Lanka its Open-Relief Centers have been described as ‘relatively safe’ largely due to their small size and transitory nature which contributed to their lack of political significance. These Open Relief centers in Sri Lanka have received governmental support and were negotiated within the country rather than prompted by external states. This consent-based approach seems to have worked quite well since the ORCs have protected many displaced persons with no military backing. Political Will In cases where consent is questionable, or when it is a clear case of violation of a state’s sovereignty, then the safe haven has to be backed with credible military threat and strong political will to use it. The forces charged with the protection of the safe havens should be appropriately equipped with the adequate mandate. Future safe haven operations have to resemble Iraq’s military credibility not Bosnia’s inadequate resources and political will. This is clearly problematic because dealing with political will and resources in the field of humanitarian interventions is very difficult. The only solution would be to have fixed guidelines on when to establish safe havens and what resources are needed. A.Arulanantham proposed to set this limit to 100,000 displaced people, at which number a safe area should automatically be put in place. This could deal with the politicized nature of recent safe haven operations, with a set number intervention would become automatic. Similar guidelines should be used in deciding how many troops should be made available or the size of the haven itself. One crucial element in the future use of the safe haven policy is that it should not be treated as an alternative for the current asylum policy. The aim here is to restructure safe havens so as to offer a higher quality to the right to remain; this should in no way impede an individual’s right to flee. This attempt to restructure safe havens should be seen as a parallel attempt to an increased protection of the non –refoulement norm. This seems to be the core of the problem of recent safe haven policies. In cases where there was a safe haven regime governments have refused to grant asylum to refugees on the basis that they were already being protected, therefore greatly impeding their right to flee, even though recent operations have not offered an adequate quality of protection to justify this. He proposes that a new body should be established whose sole purpose would be to report on whether IDPs’ rights are being adequately protected during safe haven operations. He argues that, as a result of the increased information available, governments will be forced to either accept refugees or provide a more suitable protection in safe havens. Governments will thus be faced with three choices, that of declining to honor their refugee obligations (which would be highly unlikely in the light of the historical tradition of refugee law), accepting refugees in large numbers (again highly unlikely in the current political climate), or increasing protection for safe havens. Conclusion As governments across the globe are failing to honor their obligation to protect at-risk individuals through asylum policies, and as conflicts seem to be unleashing ever-increasing influxes of refugees, it seems that there is still a role to play for a restructured safe haven policy. Safe havens can be a very useful tool in protecting would-be refugees and IDPs, and are a helpful mechanism for the delivery of humanitarian aid. Still, safe haven policy should be implemented as a parallel policy to asylum and in no circumstance should it inder refugees’ right to flee. In the past humanitarian disasters have occured when safe havens have impeded the rights of refugees to seek asylum while not offering an adequate level of safety. A real solution would be a return to the original understanding of what a ‘safe area’ truly entails. Thus, future safe haven operations should be demilitarized from the outset, and should be based on consent. Lacking real consensus, they must be backed by credible military threat. The key to developing safe havens without obstructing refugees’ right to flee seems to lie in the development of a new information mechanism that would credibly asses the quality of protection in safe haven operations and would thus pressure governments to either offer high quality protection or open their doors to thousand of refugees. | 
