PROTECTING Internally Displaced

Persons

Kasim Balarabe

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Learning Objectives

1. Who is an IDP?

2. Where are IDPs found?

3. Why are IDPs a group of concern?

4. What are IDPs’ rights?

5. Who is responsible for their protection?

Overview

Origins of the IDP crisis

Definition of IDPs Responsibility for protecting IDPs

The legal framework: the Guiding Principles on Internal Displacement

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Origin of IDP Crisis

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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:

1. 1992 Creation of “RSG” position with advisory role2. Lack of centralized UN operational coordination

Normative1998 Guiding Principles on Internal Displacement

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Who is an IDP?

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Who is an IDP?

There is no Legal Definition as there is for Refugees.

Internally displaced persons 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.”

(Guiding Principles on Internal Displacement, Introduction, para. 2)

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Elements of the Definition persons or groups of persons forced or obliged to flee or to leave their homes / places of habitual residence as a result of / in order to avoid the effects of

in particular: 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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Core Characteristics of an IDP

1. Involuntary movement

2. Movement occurs within national borders

Who IDP Definition Does Not Cover

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Who the IDP definition does NOT cover

Civilians caught in war but still in their homes

Refugees (though IDPs may become refugees) Economic migrants Nomadic groups Homeless persons (though IDPs may become

homeless and vice versa)

12© Norwegian Refugee

Council

25 million IDPs from conflict worldwide, in some 50 countries

Internal displacement worldwide

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Purpose of IDP definition

Not a legal status, like “refugee”, under international lawin some countries, national legislation nonetheless creates a legal status for IDPs, or for certain groups of IDPs

Descriptive factual definition of persons in a situation of potential vulnerability facing particular risks as result of being displaced

Why Focus on IDPs?

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Why focus on IDPs?

Distinctive risks from displacement can include:

Loss of home and property Family separation, break of community links Removal from habitual livelihood & income Loss of identity documentation Disruption of schooling Physical insecurity – during flight, in areas of

displacement, on return Potentially inhospitable environment (ex. for minorities) Stigmas, viewed with suspicion Displacement itself may be deliberate Risk of forced return to unsafe environment

Rights of IDPs

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What are IDPs’ rights?

• No specific international IDP convention or treaty

However:• International human rights law• International humanitarian law

Plus• National legislation

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International Human Rights Law

Provides protection to all human beings equally

Imposes obligations on States Applies in times of peace and war Key sources:

– International human rights instruments - Universal Declaration, ICCPR, ICESCR; + issue-specific (e.g. CAT) and group-specific (e.g. CRC) treaties

– Regional human rights treaties (e.g. AfCHPR, ECHR)

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International Humanitarian Law (IHL)

Applies in situations of armed conflict– International armed conflict

Four Geneva Conventions of 1949 Additional Protocol I

– Non-international armed conflict Article 3 common to the four Conventions Additional Protocol II

Protects people who are not taking part in hostilities

Binds state and non-state actors Explicitly prohibits displacement (unless

absolutely necessary for safety of civilians of military imperatives)

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International Refugee Law

Does not apply to IDPs

However, offers useful guidance for protection risks particular in situations of displacement (e.g. non-refoulement)

Would apply if IDPs become refugees

Normative Framework for IDPs

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Normative Framework Unlike the case of refugees, there is no international

treaty which applies specifically to IDPs. Recognizing the gap, the UN Secretary-General, Boutros-Ghali appointed Francis Deng in 1992 as his representative for internally displaced persons.

Besides acting as an advocate for IDPs, Deng set out in 1994, at the request of the UN GA to examine and bring together existing international laws relating to the protection of IDPs.The result of this work was the document, Guiding Principles on Internal Displacement

The Guiding Principles lay out the responsibilities of states before displacement – that is, to prevent displacement – during and after displacement.

The Guiding Principles, however, are non-binding

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Normative Framework for IDPs

Human Rights Law

IHL

Guiding Principles on Internal Displacement

Refugee Law

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The UN Guiding Principles on Internal Displacement

• Restate binding international legal norms (Human Rights Law, International Humanitarian Law)

• Clarify what these mean in IDP situations• Spell out IDPs’ rights + responsibilities of States and other actors towards them

• Authoritative “international framework for the protection of IDPs” (UN World Summit 2005)

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Guiding Principles on Internal Displacement

Translated into 45+ languages

Content•Introduction•Section I: General Principles•Section II: Protection from Displacement•Section III: Protection during Displacement•Section IV: Humanitarian Assistance•Section V: Return, resettlement & reintegration

= 30 principles in total

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Introduction – Scope and Purpose

IDP definition Affirms GPs reflect IHRL and IHL Provide guidance on law to

– Representative of the SG on IDPs– States– All other authorities, groups and persons

– Intergovernmental organizations and NGOs

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Section I (Principles 1-4)General Principles

Equality and non-discriminationIDPs shall enjoy the same rights as other persons in

theircountry and shall not be discriminated against

(Principle 1, 4)

Sovereignty as responsibility National authorities have the primary responsibility

to protect and assist IDPs within their jurisdiction.” (Principle 3) All relevant groups to observe Principles

i.e. national and local authorities, + non-state actors (e.g. parties to a conflict) (Principle 2)

Particular attention to vulnerable groupse.g. children, the elderly, disabled persons

(Principle 4)

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Section II (Principles 5 - 9) Protection from displacement

• Right not to be arbitrarily displaced (GP 6)• Duty to prevent and avoid displacement of populations unless absolutely necessary (GP 5, 6, 7)• If unavoidable, certain guarantees must be met incl.:

• Specific decision taken by State body with such legal authority• Does not violate right to life• Conditions of safety, nutrition, health, hygiene• Full information and participation of affected population• Particular protection for indigenous persons

(GP 7, 8, 9)

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Section III (Principles 10 - 23) Protection during displacement

Range of civil, political, economic, social and cultural rights, e.g.:

• to life, liberty and security, including protection against attack, torture, sexual and gender-based violence (GPs 10, 11, 12)

• to freedom of movement, protection from forced return (GP 14)

• to safe access to essential food, shelter, health services, water and sanitation (GP 18)

• to personal documentation (GP 20)• to education (GP 23)• to vote and participate in public affairs (GP 22)

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Section IV (Principles 24 - 27) Humanitarian assistance

• primarily a national responsibility (Principle 25)

• when States unable or unwilling, international humanitarian organizations have right to offer assistance and have safe access (Principle 25)• assistance to IDPs must not be used for political or military purposes (Principle 24)• humanitarian actors should address not only IDPs’ assistance needs but also protection risks (Principle 25)

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Section V (Principles 28 - 30) Durable Solutions

• IDPs’ right to choose between• Return to homes/communities and reintegration• Local integration at the place of displacement• Resettlement and integration elsewhere

• Voluntarily, in safety and dignity (Principle 28)

• Non-discrimination and equal access to public services, and to participate in public affairs (Principle 29)

• Right to property restitution/compensation (Principle 29)

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Durable Solutions – When does displacement end?

Framework for Durable Solutions for IDPs (RSG on IDPs)• No consensus as to when to stop considering someone as IDP.

Because identification as an IDP does not confer a special status under international law there is no cessation clause as for refugees.

• To determine whether and to what extent a durable solution has been achieved it is necessary to examine both the processes (1) and the actual conditions (2) of the returnees/resettled persons

• Gradual process towards sustainable reintegration (continuing needs and rights). Displacement ends when one of the durable solutions occurs and IDPs no longer have needs specifically related to their displacement

• Human rights and humanitarian law guarantees remain applicable even if the person concerned, due to return or resettlement, no longer has special needs related to his/her former displacement

(1) e.g voluntary and well-informed decision by IDPs to return to their home communities or settle elsewhere in their country(2) e.g formerly displaced persons do not suffer attacks and are not discriminated

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Women – particular protection risks

Protection from sexual & gender-based violence and sexual exploitation (GP 11)

Special attention to health needs of women, incl. access to female health care providers and services, counseling for victims of sexual abuse (GP 19.2)

Full participation in design and distribution of humanitarian assistance (GP 18.3)

Consultation in planning relocation (GP 7.3)

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Age and gender focus

Equal rights for women to obtain documents, e.g. personal identification documents, birth and marriage certificates, in their own names (GP 20.3)

Special efforts to ensure the full and equal participation of women and girls in education programs (GP 23.3)

Education and training facilities to be available to IDPs, especially adolescents and women, whether or not living in camps, as soon as possible (GP 23.4)

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Children – particular protection risks

Prohibition of sale into marriage and forced labour of children (GP 11b)

Prohibition on recruitment and participation of children in conflict (GP 13.1)

Family unity and responsibility to accelerate family reunification for children (GP 17.3)

Education -- free and compulsory at primary level, special efforts to ensure full and equal participation of girls, education and training facilities, particularly for adolescents (GP 23)

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Summary of the Guiding Principles

30 principles, restating most relevant rights in situations of internal displacement

Cover all phases of displacement Apply in conflict as well as non-conflict Provide guidance to state + non-state actors as well as to all other actors working with IDPs

Pay attention to particular protection risks facing specific groups of IDPs, e.g. women and children

Responsibility to Protect IDPs

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Responsibility to Protect

States International CommunityIn international law it is the responsibility of the

government concerned to provide assistance and protection for the IDPs in their country. However, as many of the displaced are a result of civil conflict and violence or where the authority of the central state is in doubt, there is no local authority willing to provide assistance and protection

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National Responsibility towards IDPs

• Recognize and raise awareness of the problem• Ensure national legal framework respects IDPs’ rights,

revising existing legislation or developing new legislation as necessary

• Strengthen capacity of national institutions to fulfill protection responsibilities (incl. training on Guiding Principles)

• Develop a national IDP strategy, policy or action plan through wide consultations, including with IDPs and civil society

• Prevent arbitrary displacement and promote durable solutions

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International Responsibility

• “Responsibility to protect” if States unable or unwilling

• Assist States to fulfill protection responsibilities

• No single “IDP agency”• Several agencies assist IDPs (e.g. WFP) and

Governments in their response (e.g. UNDP, IOM)• Some agencies with protection mandate (UNHCR, OHCHR,

ICRC, Unicef)• Representative of the Secretary-General on the Human

Rights of Internally Displaced Persons (since 1992)

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Inter-agency coordination

• “Collaborative approach” • Under UN Emergency Relief Coordinator (HQ) and • UN Humanitarian Coordinator (country-level)

• Since end 2005 “cluster approach”• accountability, predictability, leadership

• UNHCR leads clusters on: • protection in conflict situations• camp management• shelter

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UNHCR‘s role GA Resolution 53/125 (1998) defines UNHCR‘s engagement with IDPs: Specific request from the SG or the competent organs of the UN

Consent of the State concerned Taking into account the complementarities of mandages/expertise of other relevant organizations

Activities on behalf of IDPs must not undermine the institution of asylum

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UNHCR‘s role as Cluster Lead

Cluster approach – not in itself a mandate-giving mechanism– arrangement through which the existing mandates of organizations are brought together in a coordinated and predictable fashion for increasing impact and accountability

UNHCR: port of first call and provider of last resort

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The scope of UNHCR‘s activities

Monitoring Protection situation assessments Direct Intervention

– assisting civilians in life-threatening situations– negotiate safe passage for relief supplies– intervene with authorities to prevent forced return– facilitate freedom of movement (including access to asylum)– advocate with parties to the conflict

Legal protection (e.g assist in developing national legislation)

Exploring durable solutions

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Operationalizing protection

Rights-based approach: – starts from rights to be met, not needs– IDPs are “rights-holders“, States and other

authorities are “duty-bearers“, with responsibilities to uphold these rights

Community-based approach: – IDPs must be at the centre of decision-making

concerning their protection and well-being– Involves all members of community (women, men,

girls and boys) as partners in their protection

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Conclusions

• IDPs shall enjoy the same rights as other persons in their country

• IDPs face particular risks, which require attention• International Human Rights Law and International

Humanitarian Law provide protection for IDPs• The UN Guiding Principles on Internal Displacement spell out

the rights of IDPs and responsibilities of Governments and other actors

• Primary responsibility for protecting, assisting and finding solutions for IDPs, lies with national authorities

• The international community works to support effective national responses in line with international law.

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