|
Who is an internally displaced person ('IDP')?
IDPs are described in the Guiding Principles on Internal Displacement (Introduction) as: "persons or groups of persons who have been forced or obliged 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 generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border." The involuntary nature of their departure and the fact that they remain in their own country are the two main elements determining who is an internally displaced person.
What is the difference between an IDP and a refugee?
According to the 1951 Convention on the Status of Refugees, a "refugee" is a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." (Article 1, A(2))
A crucial requirement to be considered a "refugee" is crossing an international border. Persons forcibly displaced from their homes who cannot or choose not to cross a border, therefore, are not considered refugees even if they share many of the same circumstances and challenges as those who are.
In addition, as the definition in the Convention on the Status of Refugees highlights, refugees are forcibly displaced as a result of persecution. Such persecution may be associated, for example, with ethnic or religious conflict. While internally displaced persons may flee for the same reasons, they, in contrast may also be displaced as a result of generalized violence or natural or human-made disasters and even development projects.
Unlike refugees, internally displaced persons do not need to undergo any process to determine their legal status as an internally displaced person. The term ''internally displaced person' is descriptive, reflecting the fact of their displacement and that they have not crossed an international border. Refugees, in contrast, have a special status in international law with rights specific to this status. In general, their entitlement to access these specific rights is based on a formal process to determine their status as a refugee.
Finally, the Convention on the Status of Refugees provides for individuals who meet particular characteristics to be excluded from the status of refugee. While the notion of 'exclusion' is a concept that exists in the field of international refugee law, it does not exist in international human rights law and not in relation to IDPs.
What rights do IDPs have?
While no international convention on the rights of internally displaced persons exists, they enjoy the same human rights as all other people within their own country of citizenship or residence. These rights may be articulated in the domestic constitution and legislation as well as international human rights instruments and customary law. In situations of armed conflict, moreover, they enjoy the same rights as other civilians to the various protections provided by international humanitarian law.
The Guiding Principles on Internal Displacement restate in explicit terms the rights of IDPs that are implicit in the more general guarantees of existing international human rights and humanitarian law relevant to the internally displaced. The Principles identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration.
What do the Guiding Principles say?
Arbitrary displacement is prohibited according to the Guiding Principles (Principles 5-7). Once persons have been displaced, they retain a broad range of economic, social, cultural, civil and political rights, including the right to basic humanitarian assistance (such as food, medicine, shelter), the right to be protected from physical violence, the right to education, freedom of movement and residence, political rights such as the right to participate in public affairs and the right to participate in economic activities (Principles 10-23). Displaced persons also have the right to assistance from competent authorities in voluntary, dignified and safe return, resettlement or local integration, including help in recovering lost property and possessions. When restitution is not possible, the Guiding Principles call for compensation or just reparation (Principles 28-30).
When were the Guiding Principles adopted?
The Guiding Principles are a document prepared by experts. They were presented by the Representative of the Secretary-General on internally displaced persons to the UN Commission on Human Rights at its fifty-fourth session in 1998 (E/CN.4/1998/53/Add.2) as an addendum to his annual report (E/CN.4/1998/53). Since then, the heads of state and governments assembled at the World Summit in New York in September 2005 have recognized the Guiding Principles as "an important international framework for the protection of internally displaced persons." (G.A. Res. 60/L.1, ¶132, U.N. Doc. A/60/L.1)
How were the Guiding Principles developed?
Led by the Representative of the UN Secretary-General on internally displaced persons, Francis Deng, the Guiding Principles were developed by a group of independent experts from all regions. Principal among the experts were Walter Kälin of the Faculty of Law at the University of Bern (Bern, Switzerland), Manfred Nowak of the Ludwig Boltzmann Institute of Human Rights (Vienna, Austria), and Robert Goldman of the Washington College of Law at American University (Washington DC, USA).
The first step in the process of developing the Guiding Principles was the preparation of a Compilation and Analysis of Legal Norms applicable to internal displacement. This compilation were presented to the Commission on Human Rights in 1996 (E/CN.4/1996/52/Add.2) with a supplement in 1998 (E/CN.4/1998/53/Add.1). A conclusion made by the experts in the Compilation and Analysis was that a restatement of the law would be needed to make it more relevant to IDPs and to clarify gaps and grey areas. The Guiding Principles were developed in response to this conclusion.
A series of meetings was organized to bring together a wide range of experts from regional and international organizations, humanitarian and human rights NGOs, women's and children's advocacy groups, legal associations, and research institutions. It was at a conference of fifty international experts in Vienna in 1998, hosted by the government of Austria, that the Guiding Principles were finalized.
What is the legal basis for the Guiding Principles?
In 1996, a study conducted by the Representative and a team of independent legal experts found that while existing human rights and humanitarian law provides substantial coverage for the internally displaced, there are significant areas in which it fails to provide an adequate basis for their protection and assistance (E/CN.4/1996/52/Add.2). The Guiding Principles were then developed, reflecting existing norms, but also seeking to clarify the grey areas and fill in the gaps identified in the earlier study. The legal basis for each of the principles contained in the Guiding Principles is set out in the Annotations to the Guiding Principles, written by Walter Kälin.
Are the Guiding Principles binding?
The Guiding Principles on Internal Displacement is as such not a binding instrument that could be ratified by States. However, the Guiding Principles reflect and are consistent with international human rights law and international humanitarian law, as set out in the Annotations to the Guiding Principles. To the extent that States have ratified the human rights and humanitarian instruments upon which the Guiding Principles are based, they are bound by the corresponding principles. States also can opt, as some have done, to make them binding by incorporating them into their domestic law.
For whom are the Guiding Principles Useful?
Paragraph 3 of the Introduction to the Guiding Principles on Internal Displacement states that the Principles provide guidance to: '(a) The Representative of the Secretary-General on internally displaced persons in carrying out his mandate; (b) States when faced with the phenomenon of internal displacement; (c) All other authorities, groups and persons in their relations with internally displaced persons; and (d) Intergovernmental and non-governmental organizations when addressing internal displacement."
For example, the Principles can be used in the development of a national legal or policy framework for the protection of IDPs. They can be used as an advocacy tool to inform national authorities of their general and specific obligations towards the internally displaced, to frame assessment and monitoring activities, as a tool to train all relevant actors in the rights of IDPs and the role of different actors in promoting and protecting those rights. The Guiding Principles can also be used to identify the various sectors and vulnerable groups about which specific data should be collected in order to ensure that targeted and effective assistance is provided.
Who has responsibility to protect and assist internally displaced persons?
National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to IDPs within their jurisdiction. (see Guiding Principle 3(1))
International humanitarian organizations and other appropriate actors have the right, and many argue the responsibility, to offer protection of and assistance to the internally displaced where their state is unwilling or unable to. Consent to such an offer should not be arbitrarily withheld by the state, and all authorities concerned should grant and facilitate the free passage of humanitarian assistance and facilitate unimpeded access to the internally displaced. (see Guiding Principle 25)
What is the mandate of the Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons?
The Representative of the UN Secretary-General on the human rights of internally displaced persons ('RSG'), Walter Kälin, was appointed at the request of the Commission on Human Rights to address the human rights issues of internally displaced persons. According to the Commission on Human Rights resolution establishing the position of RSG (E/CN.4/RES/2004/55), the mandate of the Representative is: (i) to engage in dialogue and advocacy with governments and other actors concerning the rights of IDPs, (ii) to strengthen the international response to internal displacement, and (iii) to mainstream human rights throughout the UN system. The activities of the Representative include promoting and disseminating the rights articulated in the Guiding Principles on Internal Displacement, undertaking country visits, engaging governments and other actors with regard to specific situations of internal displacement, sponsoring national and regional seminars, engaging UN agencies and departments, undertaking research on issues of IDPs' human rights, and reporting annually to the Human Rights Council and General Assembly.
Which UN agency is responsible for protecting the rights of IDPs?
No specific agency is exclusively responsible for protection and assistance of IDPs. However, according to the 'cluster approach' adopted by the Inter-Agency Standing Committee, the following agencies have been designated responsibility to coordinate the response in specific situations:
- in situations of complex emergencies - United Nations High Commissioner for Refugees ('UNHCR') as cluster lead for protection, emergency shelter and camp management and coordination and United Nations Development Programme ('UNDP') for early recovery;
- in natural disaster situations - camp coordination and camp management are the responsibility of the International Organisation for Migration ('IOM') and emergency shelter rests with the International Federation of the Red Cross ('IFRC'). Responsibility for 'protection' in disaster settings and in other situations requiring a protection response is to be decided through consultation among the three UN protection-mandated agencies (UNHCR, OHCHR and UNICEF) on a case-by-case basis.
What are the regional mechanisms for the protection of the rights of IDPs?
IDPs are protected by regional human rights conventions where they exist. This protection is particularly relevant for IDPs in Africa, Latin America and Europe, where their rights can be enforced in regional human rights courts.
Africa
The African Charter on Human and Peoples' Rights 1981 sets out general human rights principles applicable to all individuals, including IDPs. Additional instruments set out, for example, the obligations of the State towards women and children, including specifically in situations of armed conflict. The African Union is in the process of developing a regional protocol on internal displacement. At the sub-regional level, instruments relating specifically to internal displacement exist, including the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons and Model Law 2006 and the Protocol on the Property Rights of Returning Persons 2006, both of which are legally binding on any country that ratifies them.
Individuals, including IDPs, can submit individual applications to the African Commission which acts as an entry-point for the African Court on Human and Peoples' Rights. The African Commission has a Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa whose mandate includes: undertaking studies and fact-finding missions; engaging in dialogue with states and others; and developing strategies to better protect the rights of these groups.
Europe
The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and its 14 Protocols recognize general human rights, many of which have particular relevance for IDPs (e.g. right to property). IDPs have brought cases of alleged violations of the Convention to the European Court of Human Rights. Recommendation (2006) 6 on internally displaced persons adopted by the Committee of Ministers of the Council of Europe, a regional human rights and democratisation organization, recognises the application of the Guiding Principles and other relevant human rights and humanitarian instruments to all IDPs and highlights the application of particular human rights principles to situations of displacement in Europe.
Americas
The American Convention on Human Rights 1969 sets out general human rights obligations. The bodies that monitor implementation of the Convention are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. IDPs can submit individual applications to the Inter-American Commission, which, like its African counterpart, acts as an entry-point for the Inter-American Court and can make binding decisions. The Inter-American Human Rights Commission had a Special Rapporteur on displaced persons until 2004. OAS resolution 2229 of 2006 calls on states to address the causes of displacement and, in the event that displacement occurs, to commit to providing IDPs with protection and assistance in accordance with the Guiding Principles. The resolution also urges states to consider adopting and implementing the Guiding Principles in their domestic law.
What is the Internal Displacement Law and Policy Manual?
The Internal Displacement Law and Policy Manual is a tool developed by the Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons and the Brookings-Bern Project on Internal Displacement as a means of assisting national authorities develop laws and policies on internal displacement. The IDP Law and Policy Manual was drafted over the course of 2007 and early 2008. The final Manual has been widely disseminated to national policymakers, competent ministries, legislators and civil society groups concerned with internal displacement.
What is the Guide to International Human Rights Mechanisms for Internally Displaced Persons and their Advocates?
The Guide to International Human Rights Mechanisms for Internally Displaced Persons and their Advocates is designed to assist IDPs in using international and regional human rights mechanisms to bring attention to their plight and where possible to secure redress. Written by David Fisher, a lawyer specializing in human rights and humanitarian law, and a former legal advisor to the Brookings-Bern Project and the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, the Guide provides a step-by-step reference to the mechanisms available to advance the rights of IDPs. It explains how to petition and bring information to:
- The UN Human Rights Council, including rapporteurs, representatives and working groups;
- The Commission on the Status of Women;
- Human rights treaty bodies (including the Committee on Economic, Social and Cultural Rights and the Human Rights Committee);
- Additional international bodies (eg. International Labour Organization, UNESCO, International Criminal Court and more);
- Regional organizations - the African Commission on Human and Peoples' Rights, the Inter-American Commission on Human Rights, the Council of Europe, and the Organization for Security and Cooperation in Europe; and
- The World Bank and regional development banks (which deal with displacement caused by development projects).
When does displacement end?
There is no absolute consensus as to when to stop considering someone an internally displaced person. However, in an effort to help address this question, the Inter-Agency Standing Committee has identified a framework by which to determine when displacement has ended (WO/0703/2072/7). This framework specifies both the processes through which durable solutions to displacement are found and the actual conditions of the returnees/resettled persons.
To summarize the benchmarks, when determining whether a durable solution to displacement has been reached it is important to consider whether:
- the national authorities have taken appropriate measures to consult with IDPs and ensure their full participation in decisions regarding return or resettlement;
- the national authorities have established the conditions conducive to safe and dignified voluntary return or resettlement;
- formerly displaced persons are able to assert their rights on the same basis as other nationals;
- international observers are able to provide assistance and monitor the situation of the formerly displaced; and ultimately
- the durable solution is sustainable.
|
