Protection of Internally Displaced Persons (IDPs)

Presented by Rhodri C. Williams, Independent Consultant ATHA Core Training, May 03, 2010 © 2011 - Rhodri C. Williams

Overview                

Origins of the IDP crisis Definition of IDPs Responsibility for protecting IDPs The legal framework: the Guiding Principles on Internal Displacement Vulnerable populations and gender Key issues, challenges and dilemmas in providing assistance to IDPs Property issues Trends and outlooks

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Origins of the IDP crisis   Post-Cold War trends !  Increased internal conflict and displacement !  Asylum restrictions: prevention and repatriation

  International response !  Institutional:   1992 Creation of “RSG” position with advisory role   Lack of centralized UN operational coordination

!  Normative   1998 Guiding Principles on Internal Displacement

Definition of IDPs   Guiding Principles, Introduction, para. 2: IDPs are “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.”

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Definition of IDPs   Compare to the standard refugee definition: A refugee is “any person who ! owing to wellfounded 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; !.”

Definition of IDPs - IDP vs Refugee   Who? !  Refugee: “any person” !  IDP: “persons or groups of persons”

  Where? !  Refugee: “is outside the country of nationality” !  IDP: “have not crossed [a] state border”

  How? !  Refugee: legal definition (treaty) !  IDP: descriptive definition

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Definition of IDPs - IDP vs Refugee   What? !  Refugee: “persecution ! for reasons of race, religion, nationality, membership of a particular social group or political opinion” !  IDP: “the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters”

  By what standard? !  Refugee: “well-founded fear” !  IDP: “forced or obliged to flee ! as a result of or in order to avoid the effects of !”

Definition of IDP - Core Elements   Internal : within national borders !  Distinction from refugees !  Questions: IDPs sur place? Repatriated IDPs?

  Displacement : involuntary movement !  Distinction from economic migrants !  Direct or indirect coercion ( forced or obliged ) !  Test: possible to return?

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Responsibility for protecting IDPs   “Sovereignty as Responsibility”, Guiding Principle 2.1: “National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to [IDPs] within their jurisdiction.”   (Also used as basis for R2P !)

Responsibility: Why focus on national authorities?   IDPs remain within their country of citizen or habitual residence (unlike refugees).   Therefore, they are entitled to exercise their rights on the same basis as the non-displaced population (cf: international protection).   Displacement creates vulnerabilities and risks not shared by non-displaced   “Special measures” needed to address effects of displacement - for IDPs generally and particularly vulnerable sub-groups   Failure to take such measures discriminatory

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Responsibility: Who else is responsible?   Non-state humanitarian actors !  Residual responsibility: states may exercise responsibility in part by facilitating humanitarian aid !  GP 25.1: “primary duty and responsibility for providing ! assistance ! lies with national authorities” !  GP 25.2: “! humanitarian ! actors have the right to offer their services !. Consent thereto shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance.” !  GP 27.1: “humanitarian ! actors when providing assistance should give due regard to the protection needs and human rights of [IDPs]”

Responsibility: Who else is responsible?   Other non-state actors !  GP 2.1: “These Principles shall be observed by all authorities, groups and persons irrespective of their legal status and applied without any adverse distinction. !  The observance of these Principles shall not affect the legal status of any authorities, groups or persons involved.”

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Responsibility: Contribution of the GPs   Introduction, para. 1: !  address the specific needs of [IDPs]. !  identify rights and guarantees relevant to   protection of persons from forced displacement   protection and assistance during displacement   protection and assistance during ! reintegration.

  Introduction, para. 3 !  provide guidance to the RSG, states and all other actors in dealing with IDPs

Responsibility: Legal foundation of GPs?   The GPs are not a treaty and do not create any new international law responsibilities   The GPs are a compilation of existing rules and clarification of how they apply to IDPs:   Introduction, para. 3: “These Principles reflect and are consistent with international human rights law and international humanitarian law”   But note: !  “individual right/shall” = settled IL rule !  “state responsibility/should” = best practice

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Responsibility: International acceptance of GPs   2005 UN World Summit Outcome Document, para. 132: “We recognize the Guiding Principles on Internal Displacement as an important international framework for the protection of [IDPs] and resolve to take effective measures to increase the protection of [IDPs].”

The Legal Framework   The Guiding Principles on Internal Displacement !  !  !  !  !  ! 

Introduction: scope and purpose Part I: general principles Part II: protection from displacement Part III: protection during displacement Part IV: humanitarian assistance Part V: return, resettlement and reintegration

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Vulnerability and gender   How do the Guiding Principles address vulnerability? Do they differentiate on the ground of gender?   What is the difference between the approach to protecting the vulnerable in the Guiding Principles and that in Refugee Law?   Which do you think is more effective?

Key Issues - assistance to IDPs   Durable solutions - lack of a clear endpoint   Protracted internal displacement   Role of national authorities   Hidden IDPs - urban and dispersed rural settings

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Property issues   “Three generations” of restitution 1.  Means of promoting return 2.  Separate right allowing for free choice of durable solutions !  Restitution preferred over compensation !  Based on Bosnia practice !  Reflected in ‘Pinheiro Principles’

3.  Flexible approach !  Restitution not automatically favored

Trends   Numbers steady over last five years but recent rise   Initial focus on conflict IDPs through tsunami   New focus on rights-based approach to disaster IDPs   Current frontier issue - developmentinduced displacement

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Thank you!   Questions?

The Legal Framework   GPs Introduction !  Para. 1: purpose   “address needs/identify rights”

!  Para. 2: definition   Descriptive nature highlighted by inclusion in introduction not operational parts

!  Para. 3: legal basis and to whom addressed   Consistent with int’l. law   Addressed to RSG, states, all other actors

!  Para. 4: dissemination

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The Legal Framework   Part I: General principles !  GP 1: No discrimination on basis of displacement !  GP 2: Binding on non-state actors !  GP 3: National responsibility !  GP 4: Non-discrimination   4.1: No discrimination in applying GPs   4.2: Special measures for vulnerable IDP groups

The Legal Framework   Part II: Protection from displacement !  GP 5: Respect for IL as prevention !  GP 6: Prohibition of “arbitrary” displacement   Arbitrary = contrary to IL, examples given   6.3: Non-arbitrary becomes arbitrary if prolonged

!  GP 7: Conditions of displacement   General conditions: necessity (7.1), aid (7.2)   7.3: Specific conditions for development projects

!  GP 8: No lethal or degrading displacement !  GP 9: Avoid displacement of vulnerable

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The Legal Framework   Part III: Protection during displacement !  GP 10: Right to life   Human rights and humanitarian law

!  GP 11: Right to physical and mental integrity   Gender-based violence included

!  GP 12: Liberty and security of person   Confinement in camps and discriminatory arrest

!  GP 13: Recruitment   No child recruitment and no discrimination

The Legal Framework !  GPs 14 and 15: Freedom of movement and choice of residence        

Right to leave and enter camps/settlements Right to seek safety elsewhere in country Right to leave country (and seek asylum) Internal non-refoulement

!  GPs 16 and 17: Family life   Information, remains and grave sites of missing   Family unity and reunification   International assistance in tracing

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The Legal Framework !  GP 18: Adequate standard of living   Core economic/social right   Read together with GP 3.2 and Section IV, argument for “right to humanitarian assistance”   “At the minimum, regardless of the circumstances” ! “shall provide”   Essential food, water, sanitation, shelter, clothing and medical care (key humanitarian sectors)   18.3: Women’s participation in distribution

The Legal Framework !  GP 19: Medical care   Non-essential care: “shall receive to the fullest extent practicable !”   Psycho-social treatment   Health needs of women   Prevention of contagious/infectious disease (AIDS)

!  GP 20: Right to recognition as a person   Documentation necessary to enjoy human rights   Women’s equal rights to documentation

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The Legal Framework !  GP 21: Property and possessions   Human rights and humanitarian standards   Positive obligation re: non-state actors

!  GP 22: Non-discriminatory participation   Thought, conscience, opinion, expression (right to information)   Employment and economic activities   Association and community participation   Political participation (active and passive)   Language

The Legal Framework !  GP 23: Education        

Free and compulsory primary education Respect for cultural identity, language and religion Equal participation of women and girls Education and training facilities made available “as soon as conditions permit”

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The Legal Framework   Part IV: Humanitarian Assistance !  GP 24: Humanity and impartiality !  GP 25: Primary duty of national authorities   Offers of assistance by non-state humanitarian actors “shall” be considered in good faith and “shall not” be arbitrarily refused, especially where state authorities cannot or will not provide aid   Free passage and access !  GP 26: No attacks on humanitarian aid (diversion?) !  GP 27: “Due regard” to protection needs and human rights (without prejudice to protection mandates)

The Legal Framework   Part V: Reintegration !  GP 28: Durable solutions   State duty to establish conditions/provide means   Free choice between return and “resettlement”   Duty to facilitate reintegration either way   Participation of IDPs in planning durable solutions !  GP 29: Conditions for durable solutions   Non-discrimination, public participation, access to services   Property restitution and compensation !  GP 30: Humanitarian access to assist reintegration

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