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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 10 |
PROMOD NAIR[1]
We went in joy and in sorrow;
Because of the destruction and the disgrace,
We grieved for our community and
we rejoiced that we had escaped
with so many survivors[2]
I’m leaving
I’m leaving now
Before loneliness
Suffocates me
I’m leaving
Before I leave
I want to say thanks ...
I am grateful
for all the beautiful eyes who
saw a (hu)man in me and not an alien.[3]
Millions all over the world are currently internally displaced as a result of various causes including forcible movements to inhospitable areas, civil wars in which villages have been destroyed and ethnic persecution through government policies.[4] Yet the plight of internally displaced persons is a problem that is not directly addressed by any international instrument, thereby contributing to the ad hoc nature of the international community’s response to such crises. The failure of the international community to address this problem may result in a threat to the internal stability of states, since those persons who are not assisted and protected in their own country often seek such assistance and protection as refugees in other countries. In doing so, they join the already swollen ranks of the approximately 17 million refugees.[5] Given the recent heightened awareness of the suffering endured by internally displaced persons, it is time for the international community to address this problem from a legal standpoint.
The phenomenon of internal displacement has gradually become an internationalised one, and the reason behind this trend is not far to seek. The presence of internally displaced persons within national territory means that their own government bears primary responsibility for meeting their protection and assistance needs. The irony of this is glaring, since more often than not, it is these very governments that cause or, to a lesser level of fault, tolerate such internal displacement. Therefore, in most cases, they are either unwilling or unable to guarantee the basic rights and minimum needs of their internally displaced persons. This has led to the international community, inter-governmental and non- governmental organisations taking up the cause of these hapless people.[6] It is this issue which has controversially forced itself onto the agenda of international refugee law that is the focus of analysis in the present paper. The present article raises the fundamental issues in the discourse focussing on the development of a regime for the protection of IDP’s. It must be clarified at the very outset that this paper is based on the premise that IDP’s in most cases would not include cases of development- induced displacement, for reasons explained in a subsequent section of the present paper. Therefore, a critique of development- induced displacement (possibly focussing on the Narmada decision in the Indian context) is outside the scope of detailed analysis in this paper.
Internally displaced persons are the victims of armed conflict, discrimination or persecution. There are many who opine that they are refugees in all but name. From a legal point of view, however, the fact that these victims have not crossed an international border is extremely significant. In fact, they do not enjoy the same rights as refugees, since the 1951 Convention on the status of refugees specifically defines refugees as “being outside their country of nationality (...) or of habitual residence.”[7] A crossing an international border. For instance, Andrew Shacknove argues:
“... alienage is an unnecessary condition for establishing refugee status. It... is a sub- set of a broader category: the physical access of the international community to the unprotected person. The refugee need not necessarily cross an international frontier to gain such access. Thus, I shall argue that refugees are, in essence, persons whose basic needs are unprotected by their country of origin, who have no remaining recourse than to seek international restitution of their needs, and who are so situated that their international assistance is possible.”[8]
It is often impossible and nearly always counter-productive and nearsighted to care only for the refugees, while ignoring their nearby compatriots who were internally displaced for many of the same reasons. A comprehensive approach to the global refugee problem must, for both pragmatic and ethical reasons, also address the situation of internally displaced people.
Many of the world’s internally displaced have been forced to abandon their homes for precisely the same reasons as refugees. External and internal population displacements often take place within and from the same country at the same time. And in some situations, they involve the same people. While remarkably little is known about the dynamics of forced migration, it is clear that many people whose lives and liberty are at risk initially seek sanctuary within their own country, and only go into exile as a last resort. In other situations, moreover, internally displaced populations include sizeable numbers of former refugees who have been uprooted for a second time after returning to their homeland.
The first element of Convention refugee status is that the claimant must be outside his or her country of origin. Their plight may be every bit as serious as that of individuals who cross borders, yet the Convention definition of refugee status excludes internal displaced persons from the scope of global protection. This strict insistence on the territorial criterion has prompted concern that there is a mismatch between the definition and the human suffering consequent to involuntary migration. In one sense, the exclusion of internal refugees is clearly unfair: It does not recognise the existence of social, legal, and economic barriers which make it impossible for all to escape to international protection. The Convention definition of refugee status therefore responds in a less than even- handed way to the protection needs of persons similarly at risk of persecution.
James Hathaway reviews the historical and practical reasons which led to alienage being prescribed as a criteria for determining refugee status.[9] According to him, there is a threefold historical rationale for the requirement that only persons outside their State be eligible for Convention refugee status.
First, the Convention was drafted with a specific purpose in the context of limited international resources. Its intent was not to relieve the suffering of all involuntary migrants, but rather to deal only with the problem of legal protection and status.[10] Its goal was to assist a sub- set of involuntary migrants composed of persons who were “outside their own countries [and] who lacked the protection of a government”,[11] and who consequently required short- term surrogate international rights until they acquired new or renewed national protection. Internal refugee displacements, while of humanitarian note, “were separate problems of a different character”,[12] the alleviation of which would demand a more sustained commitment of resources than was available to the international community.
Second, there was a very practical concern that the inclusion of internal refugees in the international protection regime might prompt States to attempt to shift responsibility for the well- being of large parts of their own population to the world community. The obligations of States under the Convention would thereby be increased, as a result of which fewer States would be likely to participate in the Convention regime.[13]
Third, and most fundamental, there was an anxiety that any attempt to respond to the needs of internal refugees would constitute an infringement of the national sovereignty of the State within which the refugee resided. Refugee law, as part of international human rights law, constitute a recent and carefully constrained exception to the long- standing rule of exclusive jurisdiction of States over their inhabitants. While it was increasingly accepted in the early 1950’s that the world community had a legitimate right to set standards and scrutinise the human rights record of the various countries, it was unthinkable that refugee law would intervene in the territory of a State to protect citizens from their own government. The best that could be achieved within the context of the accepted rules of international law was the sheltering of such persons as were able to liberate themselves from the territorial jurisdiction of a persecutory State.[14]
None of the three factors which dictated the exclusion of internal refugees- limited resources, concern about State participation, or respect for sovereignty- was so much a matter of conceptual principle, as it was a reflection of the limited reach of international law.[15] The territorial dimension of the Convention definition of refugee status, then, was dictated by the extant authority of international law.
There are diverse computations of the actual number of internally displaced people in the world today. However, there is a broad international consensus that the global population of internally displaced people stands somewhere in the region of 25 to 30 million: up to 16 million in Africa, six or seven million in Asia, around five million in Europe[16]and up to three million in the Americas.[17]
It is not easy to ascertain the number and location of the world’s internally displaced people. This is attributable not only to the problems in defining ‘internally displaced persons’, but also because of several institutional, political and operational obstacles. Unlike the collection of refugee statistics, a task undertaken by UNHCR, no single UN agency has assumed responsibility for the collection of figures on internally displaced populations.
The question of internal displacement is also a politically sensitive one for sovereign states. Governments are often unwilling to admit to the presence of such populations on their territory, since they are indicative of the state’s failure to protect its citizens. Further, internally displaced people may themselves be reluctant to report to or register with the local authorities.[18]
Finally, there are some very obvious obstacles to the collection of data in areas affected by ongoing armed conflicts. In the combat zones of Liberia, Somalia and Zaire, for example, the international presence is minimal or non-existent, making it extremely difficult even to provide rough estimates of the number of people who have been displaced. Thus in Sierra Leone, the statistics have been based on food aid beneficiary lists, and probably reflect only a fraction of the displaced population. In other situations, such as Chechnya, internally displaced people are highly mobile, again making it very difficult to determine their exact numbers at any moment in time.
Regardless of the figure used, the magnitude of the number becomes even more apparent when it is contrasted with the smaller figure of 17 million refugees worldwide. The number of internally displaced persons is still more unsettling given that refugees are covered by a fairly extensive system of international protection,[19] whereas internally displaced persons have no such system of protection.
Any attempt at defining the term ‘internally displaced persons’ throws up a number of complex, inter- related issues. One of the principal difficulties encountered in establishing a more systematic approach to the plight of internally displaced people is the debatable nature of the concept itself. If there is to be a special legal regime for IDP’s, then its beneficiaries would have to be clearly identified. Prof. Chimni comments that any definition would have to avoid the twin pitfalls of being overly broad or narrow. In the former place, practically anyone would qualify as an IDP. Some analysts limit the term to people who have left their usual place of residence in the context of large-scale movements, and in circumstances similar to those which create refugees. Others, however, tend to employ the concept in relation to all those people who have moved within their own country for reasons that are not entirely voluntary. This includes, for example, changes of residence induced by environmental and industrial disasters, as well as the forcible relocation and population distribution programmes which governments often employ to counter security threats and to implement large-scale development projects.
Should all categories of IDP’s, irrespective of their cause of displacement, be beneficiaries of a separate legal framework or only those who are the victims of human rights violations? On the other hand, if the definition were overly narrow it may leave too many people outside the protection net. In that case, the very purpose of having a separate legal regime would be lost. A special regime would also need to address the question as to when an individual ceases to be a displaced person.
There are many who question the advisability of creating a distinct legal category of ‘internally displaced persons’. Even assuming that a definition of the concept can be agreed upon, it would undoubtedly be difficult to apply in practice. A large proportion of the world’s internally displaced people, for example, are to be found in urban areas, where their situation is virtually indistinguishable from other rural-to-urban migrants.
The definition of internal displacement generally excludes from its scope those situations in which people are obliged to move as a result of environmental disasters, development projects and infrastructural schemes. For although such people often suffer from material and psychological hardship, they may also continue to benefit from the protection of the state, and may even receive some form of compensation from it.[20]
In general, there is a strong case to be made for the argument that internally displaced people do not necessarily have to return to their original place of residence in order to find a solution to their plight, as long as they benefit from the protection of the state and are able to enjoy a satisfactory degree of physical, material and legal security in the location where they have settled. In South Africa, for example, the number of internally displaced people is said by some sources to be in the region of four million, although this total includes those who have been uprooted or relocated over a period of 30 years, many of whom are now fully settled and integrated in their place of residence. The concept of internally displaced people – which is problematic enough in any case – clearly loses even more of its value when used in this indiscriminate manner.[21] Therefore, not all problems of the internally displaced are homogenous, and there is a need for their definite prioritisation with maximum attention being devoted to the most serious problems.
At present, there is no internationally agreed definition of who is an internally displaced person. Achieving one is essential both for the development of accurate statistics and information and for comprehensive and coherent action.[22] The UN’s current working definition of who is an IDP is phrased thus:
“... persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or man- made disasters, and who are within the territory of their own country.”[23]
This definition has been described as both too broad and too narrow. Including victims of natural disasters is said to make it unduly broad. Persons fleeing armed conflict, internal strife, and systematic violations of human rights would, if they were able to cross a border, qualify as refugees both under the Organisation of African Unity (OAU) Convention and the Cartagena Declaration, and, arguably, in many cases, under the narrower definition of the Refugee Convention as well. But persons uprooted by natural disasters would not: they generally are not in need of international protection of their human rights. Moreover, their governments and the international community are usually willing- if not always able- to provide them with assistance. The argument for retaining them in the definition is based essentially on cases where governments respond to natural disasters by persecuting certain groups on political or ethnic grounds or by violating their human rights in other ways. For example, when drought and famine ravaged Ethiopia in the mid- 1980’s, the government forcibly relocated hundreds of thousands of Tigereans it regarded as political opponents, under the pretext of responding to a natural disaster. In other countries, persons have also been displaced because of a combination of natural causes and racial, social or political reasons. Maintaining natural disasters in the text, it is argued, would assure protection for such persons.
A better solution, however, might be to qualify the term so that it covers cases involving human right violations and persecution but not all victims of natural disasters.
The same reasoning would apply to man- made disasters, for example, ecological or nuclear disasters. Whereas displaced populations in many of these cases should readily receive assistance from their governments and/ or from the international community, other cases may be complicated by persecution and systematic violations of human rights or the need for international protection. It is the latter cases that should be covered by the definition. The same would be true for development projects that cause displacement.
The quantitative and time qualifiers in the definition, on the other hand, make it unduly narrow. Restricting the internally displaced to those forced to leave ‘suddenly or unexpectedly in large numbers’ would exclude serious cases of internal displacement- such as in Colombia, where the displaced often flee in large numbers, making them less conspicuous; or in Iraq, where the government organised the uprooting of Kurds over a period of years in the late 1970’s, 1980s and early 1990s.[24]
The term ‘forced to flee’ is also narrow. Countless numbers in Burma, Iraq and Ethiopia have been forcibly moved by their governments on political and ethnic grounds: they did not flee. Nor did Bosnian Muslims forcibly expelled from their homes in Banja Luka and other areas of Bosnia on ethnic and religious grounds. Such persons should explicitly be included as internally displaced.
The definition essentially should help identify persons who should be of concern to the international community because they are basically in refugee- like situations[25] within their own countries, and their own governments are unwilling or unable to protect and assist them. Some development agencies have proposed expanding the definition to encompass those who migrate because of poverty or other economic causes. But this would add millions of persons to the definition who have not fled or been forced out from their homes and whose needs are best addressed by development programmes generated by national and international agencies.
The internally displaced should be defined as persons or groups of persons who have been forced to flee, or leave, their homes or places of habitual residence as a result of armed conflict, internal strife and systematic violations of human rights, as well as natural or man- made disasters involving one or more of these elements, and who have not crossed an internationally recognised State border. What should make internally displaced persons of concern to the international community should be the coercion that impels their movement, their subjection to human rights abuse as a result of this uprootedness, and the lack of protection available within their own countries.
When an internally displaced person ceases to be displaced also needs clarification. Conventional wisdom would have it that the voluntary return of the displaced to their homes or their re- integration elsewhere marks the end of internal displacement. But if protection is largely lacking in these areas and their land and homes are occupied by others, can internal displacement be said to be over? In Angola, for example, groups of internally displaced persons voluntarily transported back to their home areas found that they could not remain there because all infrastructure had been destroyed and they had no means of sustaining themselves. The mere act of return therefore did not end their internal displacement. Determining when internal displacements is ended should go beyond merely registering whether return or relocation has taken place. It should include whether the returns or relocations are reasonably viable and whether basic security and survival are assured.
One of the fundamental purposes of the United Nations is to promote and encourage “respect for human rights and fundamental freedoms,”[26] Yet at the same time, its Charter prohibits it from “interven[ing] in matters which are essentially within the domestic jurisdiction of any State.”[27] International human rights law exists in tension between the opposing tendencies of “State-centred” guarantees of sovereign equality and non- intervention, and the “individual-centred” commitment to human rights.[28] By their own acceptance of international conventions guaranteeing human rights, many States have consented to international scrutiny of some aspects of their treatment of their own citizens within their own borders. A more difficult theoretical and practical problem arises, however, when States violate these binding norms. How then can the U.N. reconcile its mission of promoting human rights with its commitment to state sovereignty?[29]
In 1991, then-Secretary-General Perez de Cuellar warned against any explicit efforts to resolve this tension:
“We need not impale ourselves on the horns of a dilemma between respect for sovereignty and the protection of human rights. The last thing the United Nations needs is a new ideological controversy.”[30]
The United Nations High Commissioner for Refugees (UNHCR) has been at the forefront of U.N. efforts on behalf of IDPs.[31] Although the UNHCR’s mandate expressly furnishes it with authority to provide international assistance to refugees outside their home countries,[32] the UNHCR has acted pursuant to its flexible, extra-statutory “good offices” powers to bring IDPs within its area of concern.[33]
On a more normative and theoretical level, moreover, to protect the human rights of refugees because they have crossed an international border, while ignoring the plight of IDPs because they have not, violates the fundamental principle that human rights are inherent in the individual and should not depend on the accident of location.[34]
The international community’s failure to honour its commitment to share the burdens of caring for refugees has only exacerbated the problem.[35] Refugee-receiving States have therefore greeted the humanitarian concern for IDP protection with enthusiasm. Protecting potential refugees while still within their country of origin is far less permanent and costly than granting them asylum abroad.[36]
Provided that the displaced do not cross into any one State, moreover, their protection can arguably be described as purely an international obligation. For example, when Turkey refused to admit Kurds fleeing Iraqi repression at the end of the Gulf War, the international community established safe havens within Iraq as a substitute for asylum.[37] Although the UNHCR insists that such preventive protection must not be used to undermine the right to seek refuge abroad,[38] in practice it has been asserted both as a justification for the Croatian refusal to receive Bosnian refugees[39] and the Thai expulsion of Cambodians.[40]
Is sovereignty a constraint in protecting IDP’s? Member states still invoke Article 2(7) as a defence against United Nations discussion of their human rights record.[41] Further, even if all states accepted the principle that human rights are a fit subject of international concern and therefore not essentially within a state’s domestic jurisdiction, they still would need to answer the question of how the international community can lawfully express that concern. As the International Law Commission has pointed out, the fact of an international obligation is a distinct legal issue from the consequences of its breach.[42] Article 2(7) has been invoked as a barrier to almost any form of U.N. action in this area.
In any armed conflict, and particularly those with ethnic or religious underpinnings, the humanitarian needs are immense - and the means to satisfy those needs within the conflict area are severely limited. Internally displaced civilian populations move from one place to another, seeking safety and protection inside their own country. Forced population movements resulting in mass exoduses constitute by their very nature infringements of international human rights and humanitarian law. In his compilation and analysis of legal norms pertaining to internally displaced persons,[43] the Representative of the SecretaryGeneral identified a number of human rights norms that are violated when forced displacement occurs. In particular, the fundamental right to freedom of movement and to choose one’s own residence, as well as the right to housing are jeopardised. Forced displacement is also prohibited by international humanitarian law, in particular articles 49 and 147 of the Fourth Geneva Convention, article 17 of Protocol II Additional to the Geneva Conventions, entitled “Prohibition of forced movement of civilians”, and articles 51 (7) and 85 (4) (a) of Additional Protocol I.
Sometimes internally displaced persons find a degree of security, but the price they invariably pay is that of being completely uprooted - of losing their homes, their jobs and their livelihoods. More often than not for these people, interior exile leads only to more suffering, insecurity, harassment and persecution. Increasingly, the displacement of civilian populations - under the guise of “ethnic cleansing” or some other pretext - is no longer a by-product of war, but the very goal thereof. And all too often, displaced persons are suspected of allegiance to an enemy clan or political group. Almost always they are caught in the crossfire and become pawns in a sordid bargaining game. They are forced by one side to give military service, and accused by the other of treason. In general, it is virtually impossible for these displaced persons to maintain any sort of “neutrality.” They are caught in a no-win situation.
Internally displaced people can also be exposed to more direct physical threats. In a number of countries, camps and settlements for displaced persons have been the target of attacks by the warring parties – a particular problem in situations where those camps are believed to accommodate military elements. One of the most tragic instances of this type occurred at the Kibeho camp in Rwanda in April 1995, when thousands of internally displaced people (the exact number has not been established) were killed during a military operation designed to close down the camp and send its residents back to their places of origin.[44] Armed attacks on camps, settlements and so-called ‘safe areas’ accommodating the internally displaced have also occurred in countries such as Bosnia, Burundi, Chechnya, Lebanon, Liberia, Sudan and Sri Lanka, resulting in thousands of deaths and forcing many other people to flee for a second time.
When refugees, returnees and internally displaced persons are hosted in the same area, conflicts sometimes erupt between them. This has been the case for example in north Burundi, where Burundian Tutsi internally displaced persons and Rwandan Hutu refugees are housed in camps that are next to each other and are frequently competing for access to the same scarce resources.[45]
Refugees and displaced persons are often subjected to forced recruitment. According to the Special Rapporteur on the former Yugoslavia, thousands of Serb refugees from Croatia and the Krajina region have been allegedly forcibly conscripted and for that purpose expelled to Serbcontrolled territories in Croatia and Bosnia and Herzegovina.[46]
Scholarly opinion is divided on the need for evolving a specific legal framework to meet the assistance and protection needs of IDP’s. One school of thought contends that the existing regime of international human rights and humanitarian laws offer a firm basis to enforce the accountability of states. Indeed, it argues that any attempt to produce a separate legal regime for IDP’s could undercut the extensive legal framework which already exists. The other school of thought believes that there is a need for a definitive legal statement of the principles and norms applicable to the IDP’s.
There are many analysts who argue that the development of an international legal framework for the protection of internally displaced people is needed to establish standards of treatment that governments and other actors can be encouraged to observe. There are three important schools of thought in this regard consisting of:
(i) those who argue that the best approach lies in the development and dissemination of existing international human rights and humanitarian law;(ii) those who claim that there is a need for new legal instruments or standards, akin to international refugee law but specifically focused on the protection of internally displaced people; and
(iii) those who call for a more radical and comprehensive legal framework, covering all forms of forced displacement.
As the recognised guardian of international humanitarian law (sometimes known as ‘the laws of war’) the ICRC is perhaps the most influential representative of the first school of thought. It emphasises that the Geneva Conventions and their Additional Protocols already make provision for the protection of the internally displaced during periods of armed conflict. “As internally displaced persons are in principle civilians, they are protected before, during and after their displacement by all the rules that protect civilians in an armed conflict situation.”[47]
This approach is illustrated by reference to Protocol II of the Geneva Convention, which deals with ‘the protection of victims of non-international armed conflicts’, and which includes the following provisions:
(a) Article 4, which states that “all persons who do not take a direct part or who have ceased to take part in hostilities... are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction...”(b) Article 13, which states that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations,” and that “acts or threats of violence, the primary purpose of which is to spread terror amongst the civilian population, are prohibited.”
(c) Article 14, which states that “starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas... crops, livestock, drinking water installations and supplies...”
(d) Article 17, which states that “the displacement of the civilian population shall not be ordered for reasons related to the conflict...” “Civilians,” it continues, “shall not be compelled to leave their own territory for reasons connected with the conflict.”
According to the ICRC, there is a danger that the introduction of new legal standards for internally displaced people will weaken or narrow the scope of these and other norms. By concentrating on the treatment of people once they have been uprooted, such standards might also divert attention from the need to avert displacements in the first place. “The suffering experienced by displaced persons must not undermine faith in the rules whose violation has prompted the displacements.” In conclusion, the ICRC emphasises that “efforts should focus on improving respect for international humanitarian law, rather than on the establishment of new rules for the specific category – moreover very difficult to define – of displaced persons.”[48]
Then, why is there a need to develop a new and separate legal regime for the protection of IDP’s. It is essentially to redress the three important perceived weaknesses of the existing framework of legal protection.
First, given its primary concern to regulate the behaviour of states and government institutions, international law is limited in its application to actors such as rebel groups or warlords.
Second, it is sadly the case that some states have not ratified the key human rights treaties, nor the Geneva Conventions and their Protocols.
Third, many provisions of international human rights law can in any case be suspended when a national emergency has been declared – precisely the circumstances which generate the largest movements of internally displaced people.
The first significant attempt in this regard has been the evolution of the Guiding Principles. As part of the activities of the Representative of the Secretary- General on Internally Displaced Persons, Mr. Francis Deng, the Guiding Principles on Internal Displacement have been prepared. This document reflects an attempt to address the human rights needs of internally displaced persons by codifying a set of human right guarantees.[49] To this end, they restate relevant principles from a comprehensive range of international human rights and humanitarian law instruments, clarify the grey areas and address the gaps.[50] These principles address all phases of displacement and are organised into 5 main sections:
The introductory section to the Guiding Principles contains a revised definition of internally displaced persons. The previous definition adopted by the Representative referred to the internally displaced as “persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or man- made disasters.”[51] The definition of internally displaced persons as per the Guiding Principles refers to them as “persons or groups of persons who have been forced to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, and who have not crossed an internationally recognised State border.”[52] The revised definition aims to remedy two important deficiencies in the earlier definition:
According to Walter Kalin, the Guiding Principles are based on the following conceptual ideas:
The protection of internally displaced persons is complicated by the application of different sets of laws in different situations:
(i) in situations of tensions and disturbances which fall short of internal armed conflict or disaster, human rights law is applicable;(ii) situations of non- international armed conflict are governed by some of the most important principles of humanitarian law and by many human rights guarantees; and
(iii) in situations of inter-state armed conflict, the detailed provisions of international humanitarian law become primarily operative although many important human rights guarantees become applicable.
Given the application of such diverse sets of laws in different situations, it is often difficult, in practice to determine as to which norms apply to a particular situation. The Guiding Principles which cover all three situations attempt to facilitate the invocation and application of relevant legal norms. While they identify those specific guarantees which have to observed in all situations, at the same time, they differentiate between these situations where necessary.[56]
There are certain areas in contemporary international law where a general norm exists but a specific norm that would ensure implementation of the general norm has not yet been articulated. Many Guiding Principles try to specify in a more detailed manner the meaning of general norms for the special situation of displacement. Principle 12, for instance, first states that ‘every human being has the right to liberty and security of person’- a principle that is stated in a host of international human rights instruments. It then goes on to say that ‘in order to give effect to this right for internally displaced persons, they shall not be interned or confined to a camp...”.[57]
Finally, the Guiding Principles attempt to progressively develop certain general principles of human rights law where existing treaties and conventions may contain some gaps. One example is the prohibition of return to situations of imminent danger. Such a prohibition can be deduced from the prohibition of inhuman treatment, as it has been recognised by international monitoring bodies that it is inhuman to send a person to a country where he or she will face torture, death or similar human right violations. However, case law on this aspect focuses on return across international borders, a prohibition of inhuman return of internally displaced persons to dangerous areas within their own country needs to be specifically articulated. Therefore, Principle 15 states that the right of internally displaced persons ‘to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/ or health would be at risk.’ Such a principle, although yet to be stated in an authoritative international law instrument, is in line with the spirit of existing international law and reflects its underlying principles.[58] Thus, the Guiding Principles aim to clarify some grey areas of international law by adapting them to suit the requirements of protecting internally displaced populations.
With respect to the actual significance of these principles, it is primarily intended to provide guidance to the Representative in implementing his mandate, in particular in his dialogue with states; to states facing situations of internal displacement; to all other authorities, groups and persons in their relations with internally displaced persons; and to inter- governmental and non- governmental organisations when addressing internal displacement. It is also a highly persuasive compilation and consolidation of the existing international regime on the subject. Thus, it constitutes an important tool for addressing the protection and assistance needs of internally displaced persons as well as contributing to the prevention of internal displacement in the future.
With respect to their legal character, the Guiding Principles are neither a draft declaration on the rights of the internally displaced persons nor do they constitute, as such, a binding instrument. However, they ‘reflect and are consistent with international human rights law and international humanitarian law.’[59] They aim to provide practical guidance to all those dealing with internally displaced persons. They will guide the Representative of the Secretary- General in carrying out his mandate and provide him with a means for assessing specific situations of displacement. They should also guide States faced with problems of internal displacement, as well as other authorities, groups and persons. It also promises to be of use to inter- governmental and non- governmental organisations in fulfilling their mandates.
If one day, these principles get some authority, it is authority drawn from the underlying hard law which they reflect, as well as the fact that they help to improve the often tragic fate affecting the internally displaced all over the world.[60]
People have been uprooted by persecution, famine and conflict all round the world. There does exist an international regime to safeguard the interests of a certain category of this group- of those coming within the definition of the term ‘refugee’. James Hathaway is right in stating that refugee law serves fewer and fewer people, less and less well, as time goes on.[61] Internally displaced persons form another category of this group which while being in a position that is worse than that in which refugees are situated, do not come under the protectoral umbrella of any international human rights regime.
Although refugees have received far more international attention and aid in recent years, the number of internally displaced persons far outweighs the number of those who have achieved refugee status. In fact, the numbers suggest that there are up to twice as many internally displaced persons as recognized refugees. Impossibilities and impracticabilities in granting assistance, organizing support, and maintaining missions are some of the reasons this large group garners insufficient attention.
It may reasonably be predicted that the problem of internally displaced persons, for a number of different reasons, will increase even further in the future. Therefore, a comprehensive approach to the global refugee problem must, for both pragmatic and ethical reasons, also address the situation of internally displaced people.
The problem of protecting the internally displaced will continue to haunt the international community as long as effective human rights protection for all of the world’s population cannot be assured. The plight of the internally displaced is often due to their own government’s actions or tacit acquiescence. The problem therefore cannot be resolved without considering the question of how far sovereignty continues to restrain international humanitarian efforts. The resolution of this dilemma would be the key imperative for forging a meaningful solution to the problem of internally displaced persons.
Further, inter- agency co- operation is a pre- requisite for forging an effective institutional framework for the protection of the internally displaced. The UN High Commissioner for Human Rights, UNHCR, the Emergency Relief Co- ordinator (ERC), the Office for the Co- ordination of Humanitarian Affairs (OCHA)[62], the United Nations Development Programme (UNDP), UNICEF, WFP, WHO, IOM, ICRC and other related development and assistance organisations must collaborate and develop ‘frameworks of co- operation’ to promote protection, assistance and development for internally displaced persons, among others, by appointing focal points within their organisations for these matters. Inter- agency co- ordination would be preferable to the establishment of a new agency, for which there is no political will, or to the assumption of such a mandate by an existing agency, which is simply not viable.[63]
[1] Final Year, B.A. LL.B. (Hons.), National Law School of India University. The author is grateful to Prof. V. Vijayakumar, who supervised the writing of the present paper, for his insightful comments and suggestions.
[2] R. Elhanan B. Abraham Helin, Poem Written on the Expulsion of the Jews of Frankfurt, Germany (1692), reprinted in 6 Encyclopedia Judaica 1071 (1971).
[3] Ravinder Gidda, Poem Written on Occupancy of the Detention Camp for Refugees in Tubingen, Germany (1982), reprinted in Lager Und Menschliche Wurde, 116-17 (1982).
[4] Report on Refugees, Displaced Persons and Returnees, Prepared by Mr. Jacques Cuenod, Consultant, U.N. ESCOR, 2d Sess., Annex, Provisional Agenda Item 12, U.N.Doc. E/109/Add.1 (1991).
[5] Ibid.
[6] The mandate of the Representative of the Secretary- General on Internally Displaced Persons, Mr. Francis Deng, and his work on behalf of the UN Commission on Human Rights is an instance of the increasing international concern in this regard.
[7] But above and beyond the strict legal definitions, the ability of international organisations like UNHCR to intervene is very much determined by the presence or not of a frontier between the displaced persons and the authorities of their home country. Sovereign states are often unwilling to allow the international community to intervene in problems affecting their own citizens within their national boundaries. The argument of these States is that these are essentially matters of its domestic jurisdiction, and that any intervention within this sovereign sphere would amount an unlawful intervention which constitutes a violation of international law.
[8] Andrew Shacknove, “Who is a Refugee?” 95 Ethics 274, 277 (1985).
[9] See James Hathaway, The Law of Refugee Status pp. 29- 33 (1991).
[10] Statement of Mr. Henkin of the USA, UN Doc.E/ AC.7/SR.161, at page 7, I8 August, 1950.
[11] Statement of Mrs. Roosevelt of the United States of America, 5 UNGAOR at p.473, 2 December 1949.
[12] Statement of Mrs. Roosevelt of the United States of America, 5 UNGAOR at p.473, 2 December 1949.
[13] See James Hathaway, The Law of Refugee Status pp. 29- 33 (1991).
[14] Ibid.
[15] As Andrew Shacknove has observed, “alienage is an unnecessary condition for establishing refugee status. It ... is a subject of a broader category: the physical access of the international community to the unprotected person.” Andrew Shacknove, “Who is a Refugee?” 95 Ethics 274, 277 (1985).
In other words, the physical presence of the unprotected person outside his or her country of origin is not a constitutive element of his or her refugeehood, but is rather a practical condition precedent to placing her within the effective scope of international protection.
[16] Predominantly in the former Yugoslavia and the Caucasus region.
[17] F. Deng, ‘Internally displaced persons: report of the Representative of the Secretary-General’, 1995, UN Document UN/E/CN.4/1995/50, para. 11.
[18] Indeed, there is evidence to suggest that a large proportion of the world’s internally displaced people live not in highly visible camps, but mingled with family members and friends, often in urban areas where they can enjoy a higher degree of anonymity.
[19] See Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150.
[20] Exceptions to this rule, however, are not very difficult to find. During the mid-1980s, for example, the Ethiopian government moved many thousands of people from the northern highlands to the south-west of the country, employing varying degrees of coercion and inducement. Ostensibly introduced to remove people from an area afflicted by chronic problems of drought, famine and land degradation, this organised resettlement programme also served the purpose of depopulating an area inhabited by supporters of an armed opposition movement, the Tigray People’s Liberation Front.
[21] See, for example, US Committee for Refugees, World Refugee Survey 1992, Washington DC, 1995, p. 44.
[22] R. Cohen, ‘Protecting the internally displaced’, World Refugee Survey 1996, US Committee for Refugees, Washington DC, 1996.
[23] Analytical Report of the Secretary- General on Internally Displaced Persons, E/CN.4/1992/23, 14 February 1992 para 17.
[24] Ibid.
[25] Broadly defined as in the OAU Convention and the Cartagena Declaration as well as in the Refugee Convention.
[26] U.N. Charter Art. 1, para. 3; see also Art. 55 (stating that the U.N. ‘shall promote ... universal respect for, and observance of, human rights and fundamental freedoms”; Art. 56 (committing Members “to take joint and separate action in co- operation” with the U.N. to promote the objectives of Article 2, Paragraph 7).
[27] Art. 2, para. 7.
[28] See Bartram S. Brown, “The Protection of Human Rights in Disintegrating States: A New Challenge”, 68 Chi.-Kent L. Rev. 203, 204 (1992).
[29] Although the Charter technically prohibits non interference with State sovereignty but interference and intervention in “matters which are essentially within the domestic jurisdiction of any state,” U.N. Charter Art. 2, para. 7, this Chapter applies the prevailing terms of discussion by using “sovereignty” as a shorthand for exclusive control over domestic jurisdiction.
[30] Javier Perez de Cuellar, Report of the Secretary-General on the Work of the Organization, 1991 U.N.Y.B. 3, 8.
[31] Roberta Cohen & Jacques Cuenod, Improving Institutional Arrangements for the Internally Displaced 20, 26 (1995).
[32] Statute of the UNHCR, G.A. Res. 428, U.N. GAOR, 5th Sess. P 6, U.N. Doc. A/RES/428 (1950) (stating that the UNHCR’s competence extends to refugees as defined in the Refugee Convention).
[33] Statute of the UNHCR, G.A. Res. 428, (describing the High Commissioner’s good offices powers); see, e.g., G.A. Res. 50/152, U.N. GAOR, 50th Sess. P 8, U.N. Doc. A/RES/50/152 (reaffirming support for the UNHCR’s actions on behalf of IDPs “on the basis of a specific request from the Secretary-General or the competent principal organs of the United Nations”).
[34] See Luke T. Lee, “Legal Status of Internally Displaced Persons”, 86 Am. Soc’y Int’l L. Proc. 630, 631 (1992).
[35] See, e.g., G.A. Res. 48/116, U.N. GAOR, 48th Sess. PP 9, 23, U.N. Doc. A/RES/48/116 (1993) (stressing the importance of burden-sharing).
[36] See Joan Fitzpatrick, “Flight from Asylum: Trends Towards Temporary “Refuge” and Local Responses to Forced Migrations,” 35 Va. J. Int’l L. 13, 30 (1994).
[37] Bill Frelick, “Preventive Protection and the Right to Seek Asylum: A Preliminary Look at Bosnia and Croatia”, 4 Int’l J. Refugee L. 439, 441 (1992).
[38] David Petrasek, “New Standards for the Protection of Internally Displaced Persons: A Proposal for a Comprehensive Approach”, Refugee Surv. Q., Spring/Summer 1995, at 285, 286.
[39] Frelick, op cit at 449-53.
[40] Fitzpatrick, op cit at 23.
[41] Abram, op cit at 69.
[42] Report of the International Law Commission on the Work of Its Thirty-Second Session, U.N. Doc. A/25/10 (stating that “it is one thing to state a rule and the content of the obligation it imposes, and another to determine ... what the consequences of ... [its] breach must be”), reprinted in 1980 Y.B. Int’l. L. Comm’n 2(2), P 24.
[43] (E/CN.4/1996/52/Add.2).
[44] For a full analysis of the Kibeho incident, see S. Kleine-Ahlbrandt, The Protection Gap: The International Protection of Internally Displaced People: The Case of Rwanda (1996).
[45] (E/CN.4/1995/50/Add.2)
[46] (A/50/727, annex). Similar concerns have also been raised in the case of the Rwandan refugees, including children in Zaire, who have not yet been demobilised (E/CN.4/1996/68).
[47] “The ICRC and internally displaced persons”, International Review of the Red Cross, no. 305, 1995, p. 185. See also P. Lavoyer, “Refugees and internally displaced persons: international humanitarian law and the role of the ICRC”, Int’l Review of the Red Cross, no. 305 170 (1995).
[48] ibid, p. 179.
[49] These principles are based on the Compilation and Analysis of Legal Norms pertaining to internally displaced persons submitted by Dr. Deng to the Commission on Human Rights in 1996. See, UN Doc. E/CN.4/1996/52/Add. 2.
The Commission requested the Representative to develop a normative framework to enhance the protection of internally displaced persons. The Guiding Principles, submitted in 1998 are a response to that request. Subsequent to the submission of the Principles, the Commission on Human Rights, in its Resolution 1998/ 50 took note of ‘the stated intention of the representative of the Secretary- General to make use of the Guiding Principles in his dialogue with Governments and inter-governmental and non- governmental organizations’, and requested him to report to the Commission, ‘on the views expressed to him’. See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 558(1998).
[50] See, Simon Bagshaw, “Internally Displaced Persons at the Fifty- Fourth Session of the United Nations Commission on Human Rights”, 10 International Journal of Refugee Law 548, 549 (1998).
[51] This definition was first used in the Secretary- General’s 1992 analytical report on internally displaced persons: See UN Doc. E/CN.4/1992/23 (1992) (para 17).
[52] UN Doc. E/CN.4/1998/53/ Add.2, para 2.
[53] See R. Cohen and F. M. Deng, Masses in Flight: The Global Crisis of Internal Displacement 16- 19 (1998).
[54] Such instances have taken place in Myanmar, Iraq, Ethiopia and the erstwhile Yugoslavia. See R. Cohen and F. M. Deng, Masses in Flight: The Global Crisis of Internal Displacement 16- 19 (1998).
[55] See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 557, 559- 560(1998).
[56] Thus, for example, principle 7 on the modalities of displacement carefully distinguishes between the emergency stages of armed conflicts, and disasters where, realistically, only very minimal guarantees can be observed by authorities, and other situations where procedural safeguards are possible. Another example is principle 10 setting out in paragraph 1, the right to life in general, and specifying in paragraph 2 the guarantees which are relevant in situations of armed conflict only.
[57] Principle 17 similarly, states the general right to respect of family and then highlights particular aspects of this right which are of special importance to internally displaced persons (for example, the right of internally displaced families to remain together when relocated or interned in camps).
[58] A similar example is Principle 6 on ‘the right to be protected against being arbitrarily displaced’. No existing international law document explicitly enumerates such a right. However, humanitarian law prohibits displacement in some specific and limited situations and human rights law, in a more general sense, guarantees not only the freedom of movement but also the right to choose one’s own residence, and thus, a right to remain. A right not to be displaced is also found in international law documents pertaining to the rights of indigenous populations. From this, it can be inferred that a right not to be arbitrarily displaced is already implicit in international law. See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 557, 561(1998).
[59] As stated in para 3 of the Introduction to the Principles.
[60] See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 558, 562 (1998).
[61] James C. Hathaway, Can International Refugee Law Be Made Relevant Again?, World Refugee Survey 14, 19 (1996).
[62] Formerly called the Department for Humanitarian Affairs.
[63] These organisations can also focus on the problems of internally displaced persons through the establishment of a comprehensive and coherent data collection system. In fact, such a project has been ‘outsourced’ to the Norwegian Refugee Council and its Global IDP Survey aims to compile a database of country and regional information on internally displaced persons. The Global IDP Survey can be found on the internet at: http://web.sol.no/nrc-no/idp.htm.
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