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UN HQ NYUN HQ NYJune 2011June 2011

Protection of Internally Displaced Persons

Why IDPS are Why IDPS are especially vulnerableespecially vulnerable May be in transit from one place to another, may May be in transit from one place to another, may

be in hiding, may be forced towards unhealthy or be in hiding, may be forced towards unhealthy or inhospitable environmentsinhospitable environments

Social organization destroyed or damagedSocial organization destroyed or damaged May experience profound psychosocial distress May experience profound psychosocial distress Removed from sources of income and livelihood Removed from sources of income and livelihood Schooling disruptedSchooling disrupted May be displaced to areas where local May be displaced to areas where local

inhabitants are of different groups or inhospitableinhabitants are of different groups or inhospitable Armed combatants might question loyalty Armed combatants might question loyalty May lack identity documentsMay lack identity documents

IDPs have special needs ...IDPs have special needs ... Problems usually not faced by those who remain in Problems usually not faced by those who remain in

their homes:their homes:– Lack of shelter and problems related to campsLack of shelter and problems related to camps– Loss of property and access to livelihoodsLoss of property and access to livelihoods– Discrimination because of being displacedDiscrimination because of being displaced– Lack of identity cardsLack of identity cards– Lack of access to services Lack of access to services – Lack of political rightsLack of political rights– Restitution of/compensation for lost property Restitution of/compensation for lost property – Problems of return and integrationProblems of return and integration

... and are especially vulnerable... and are especially vulnerable

IDPs run a higher risk than those remaining at IDPs run a higher risk than those remaining at home:home:– to have their children forcibly recruitedto have their children forcibly recruited– to become victims of gender-based violenceto become victims of gender-based violence– to become separated from family membersto become separated from family members– to be excluded from educationto be excluded from education– to be without a jobto be without a job– to be excluded from political participation.to be excluded from political participation.

Protection GapProtection Gap

Primary responsibility rests with Primary responsibility rests with the Statethe State

State may be unable or unwilling State may be unable or unwilling to provide protectionto provide protection

““Protection Gap”—international Protection Gap”—international community steps incommunity steps in

Protection is defined as all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, namely human rights law, international humanitarian law and refugee law.

Protection can be seen as having three different dimensions:

Protection as an objective Protection as a legal responsibility Protection as an activity

Conceptual ideasConceptual ideas

1.1. Although internally displaced persons have Although internally displaced persons have departed from their homes, unlike refugees they departed from their homes, unlike refugees they have not left the country whose citizens they have not left the country whose citizens they normally are:normally are:

They can invoke all human rights and IHL They can invoke all human rights and IHL guarantees available to the citizens of that guarantees available to the citizens of that country.country.

Applicability of refugee law is not possible.Applicability of refugee law is not possible.

A separate categoryA separate category

Why a special category?Why a special category?

Shared characteristics and Shared characteristics and particular vulnerabilitiesparticular vulnerabilities

Need to delineate the Need to delineate the circumstancescircumstances

Beneficiaries must be identified in Beneficiaries must be identified in order for their needs to be metorder for their needs to be met

DefinitionDefinition

"persons or groups of persons who have "persons or groups of persons who have been forced or obliged to flee or to been forced or obliged to flee or to leave their homes or places of habitual leave their homes or places of habitual residence, in particular as a result of or residence, in particular as a result of or in order to avoid the effects of armed in order to avoid the effects of armed conflict, situations of generalised conflict, situations of generalised violence, violations of human rights or violence, violations of human rights or natural or human-made disasters, and natural or human-made disasters, and who have not crossed an internationally who have not crossed an internationally recognised State border."recognised State border."

The Guiding Principles on The Guiding Principles on Internal DisplacementInternal Displacement

1992:1992: Creation of the mandate of the Creation of the mandate of the Representative of the UN Secretary General on Representative of the UN Secretary General on Internal DisplacementInternal Displacement

Areas of activitiesAreas of activities::– Promoting Respect for the Human Rights of the Internally DisplacedPromoting Respect for the Human Rights of the Internally Displaced– Dialogue with Governments, Non-Governmental Organizations and Dialogue with Governments, Non-Governmental Organizations and

Other ActorsOther Actors– Strengthening the International Response to Internal DisplacementStrengthening the International Response to Internal Displacement– Mainstreaming the Human Rights of IDPs in the UN SystemMainstreaming the Human Rights of IDPs in the UN System

1998:1998: Guiding Principles on Internal Guiding Principles on Internal DisplacementDisplacement

Primary responsibility for protecting internally displaced persons, and all persons within their own country, rests with the national authorities of the country. National responsibility is a core concept of any response to internal displacement. It is a fundamental operating principle of the international community and is routinely emphasized by governments themselves, as a function of their sovereignty.

Yet, it is sometimes the very governments responsible for protecting and assisting their internally displaced populations that are unable or even unwilling to do so, and might even be directly involved in forcibly uprooting civilians.

In addition to ensuring the protection of rights in accordance with international law, national responsibility in situations of internal displacement entails:

1. Preventing displacement and minimizing its adverse effects

2. Raising national awareness of the problem 3. Collecting data on the number and condition of IDPs 4. Supporting training on the rights of IDPs 5. Creating a legal framework upholding the rights of

IDPs 6. Developing a national policy on internal displacement 7. Designating an institutional focal point on IDPs 8. Encouraging national human rights institutions to

address internal displacement 9. Ensuring that IDPs participate in decision making 10. Supporting durable solutions 11. Allocating adequate resources to addressing internal

displacement 12. Cooperating with the international community when

national capacity is insufficient

The Rights of IDPs: developmentsThe Rights of IDPs: developments

1998: Guiding Principles on Internal Displacement 1998: Guiding Principles on Internal Displacement

2005: World Summit: Recognition as “important 2005: World Summit: Recognition as “important international framework for the protection” of IDPsinternational framework for the protection” of IDPs

2009: Convention of the African Union on Protection 2009: Convention of the African Union on Protection and Assistance to IDPs – Kampala Conventionand Assistance to IDPs – Kampala Convention

Content of the Content of the GuidelinesGuidelines Section I:Section I: General Principles (1- General Principles (1-

4)4) Section II:Section II: Protection from Protection from

Displacement (5-9)Displacement (5-9) Section III:Section III: Protection during Protection during

displacement (10-23)displacement (10-23) Section IV:Section IV: Humanitarian Humanitarian

Assistance (24-27)Assistance (24-27) Section V:Section V: Post-Displacement Post-Displacement

Phase (28-30) Phase (28-30)

General PrinciplesGeneral Principles

IDP definitionIDP definition Principle of equality before the law Principle of equality before the law Principle of non-discrimination Principle of non-discrimination Primary responsibility of the national authoritiesPrimary responsibility of the national authorities

Peace Conflict

Country A: Internal Conflict External to Country A

Human RightsLaw• Dignity• Universal• Inalienable• Indivisible-• Interrelated-• Interdependent

InternationalHumanitarianLaw•Law of Armed Conflict•The GenevaConventions

Refugee Law (by analogy non refoulement)

Guiding Principles

5 important points!5 important points!

1.1. All human beings are entitled to fundamental All human beings are entitled to fundamental rights & freedoms, including IDPs.rights & freedoms, including IDPs.

2.2. The The GPGP authoritatively consolidate into one authoritatively consolidate into one document, relevant rights, norms, obligations. document, relevant rights, norms, obligations. The The GPGP are derived from binding, existing law. are derived from binding, existing law.

3.3. Many nations have signed treaties or are Many nations have signed treaties or are subject to HR or IHL—which makes the subject to HR or IHL—which makes the GP GP binding upon their actions in their countries.binding upon their actions in their countries.

4.4. The The GPGP seeks clarification on unclear areas seeks clarification on unclear areas and fills gaps regarding the particular needs of and fills gaps regarding the particular needs of the internally displaced.the internally displaced.

Four groups of relevant rightsFour groups of relevant rights

1.1. Rights related to physical security and integrityRights related to physical security and integrity (e.g., rights (e.g., rights to life and to be free of torture, assault, rape, etc);to life and to be free of torture, assault, rape, etc);

2.2. Basic rights related to basic necessities of lifeBasic rights related to basic necessities of life (e.g., the rights (e.g., the rights to food, potable water, basic health, shelter); to food, potable water, basic health, shelter);

3.3. Rights related to other economic, social and cultural Rights related to other economic, social and cultural protection needsprotection needs (e.g., the rights to work, receive restitution (e.g., the rights to work, receive restitution or compensation for lost property, and education); and or compensation for lost property, and education); and

4.4. Rights related to other civil and political protection needsRights related to other civil and political protection needs (e.g., the rights personal(e.g., the rights personal documentation, political participation, documentation, political participation, access to courts, and freedom of movement). access to courts, and freedom of movement).

Principle 12Principle 12

1)1) Every human being has the right Every human being has the right to liberty and security of person. to liberty and security of person. No one shall be subjected to No one shall be subjected to arbitrary arrest or detentionarbitrary arrest or detention

Derived from:Derived from:

UDHR articles 3 and 9UDHR articles 3 and 9

ICCPR article 9 (1) ICCPR article 9 (1)

General

Principle 12Principle 12

1)1) Every human being has the right to liberty and security of Every human being has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or person. No one shall be subjected to arbitrary arrest or detentiondetention

2)2) To give effect to this rightTo give effect to this right for for internally displaced persons,internally displaced persons, they shall not be interned in or confined to a camp. If in they shall not be interned in or confined to a camp. If in exceptional circumstances such internment or confinement is exceptional circumstances such internment or confinement is absolutely necessary, it shall not last longer than required by absolutely necessary, it shall not last longer than required by the circumstances.the circumstances.

3)3) Internally displaced personsInternally displaced persons shall be protected from shall be protected from discriminatory arrest and detention as a result of their discriminatory arrest and detention as a result of their displacement.displacement.

4)4) In no case shall In no case shall internally displaced personsinternally displaced persons be taken be taken hostage.hostage.

General

ApplicableTo IDPs

ApplicableTo IDPs

ApplicableTo IDPs

Principle 17 (1)Principle 17 (1)

Every human being has the right Every human being has the right to respect for his or her family lifeto respect for his or her family life

(The (The ‘General’‘General’ principle derived principle derived from from Universal Declaration of HR, Universal Declaration of HR, Article 16Article 16, the , the Fourth Geneva Fourth Geneva Convention; Article 27Convention; Article 27, & the , & the ICCPR, Article 23ICCPR, Article 23))

Principle 17 (2-4)Principle 17 (2-4)

To give effect to this right To give effect to this right for internally displaced for internally displaced personspersons, family members who wish to remain together , family members who wish to remain together shall be allowed to do so. shall be allowed to do so.

Families which are separated by displacementFamilies which are separated by displacement should be should be reunited as quickly as possible. All appropriate steps reunited as quickly as possible. All appropriate steps shall be taken to expedite the reunion of such families, shall be taken to expedite the reunion of such families, particularly when children are involved…particularly when children are involved…

Members of internally displaced familiesMembers of internally displaced families whose personal whose personal liberty has been restricted by internment or confinement liberty has been restricted by internment or confinement in camps shall have the right to remain together.in camps shall have the right to remain together.

GPs address some gapsGPs address some gaps

E.g. Principle 6E.g. Principle 6

Every human being shall have the Every human being shall have the right to be protected against right to be protected against being arbitrarily displaced from being arbitrarily displaced from his or her home or place of his or her home or place of habitual residence.habitual residence.

Core humanitarian Core humanitarian principlesprinciples Do no harmDo no harm Humanitarian imperativeHumanitarian imperative NeutralityNeutrality ImpartialityImpartiality Provision of protectionProvision of protection

STATUS OF GUIDING STATUS OF GUIDING PRINCIPLESPRINCIPLES

An authoritative consolidation of rightsAn authoritative consolidation of rights

Not a substitute for other instrumentsNot a substitute for other instruments

Provide Provide guidanceguidance on the applicable on the applicable rightsrights

Internally displaced person experience a very special Internally displaced person experience a very special factual situation and, therefore, have specific factual situation and, therefore, have specific needs.needs.

The GPs restate in more detail those legal provisions The GPs restate in more detail those legal provisions which respond to the specific needs of IDPs and which respond to the specific needs of IDPs and make explicit guarantees protecting IDPS that are make explicit guarantees protecting IDPS that are inherent in IHL and IHRL.inherent in IHL and IHRL.

Not a binding instrument but a highly authoritative Not a binding instrument but a highly authoritative document.document.

Prevention from displacementPrevention from displacement

Prohibition of arbitrary displacementProhibition of arbitrary displacement– Based on policies of apartheid or ethnic cleansingBased on policies of apartheid or ethnic cleansing– In situations of armed conflict, unless the security of In situations of armed conflict, unless the security of

civilians or imperative military reasons so demandcivilians or imperative military reasons so demand– In cases of large-scale development projects not In cases of large-scale development projects not

justified by compelling public interestjustified by compelling public interest– In case of disasters unless the safety of persons In case of disasters unless the safety of persons

requires their evacuationrequires their evacuation

Guiding Principle 281. Competent authorities have the primary duty and

responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.

2. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration.

EvaluationEvaluation

While there have been enormous advances since the process of drafting the Principles began in 1996, some of the gaps or weaknesses – such as the fact that non-state actors are not, traditionally, bound by human rights, and the option of derogation from human rights – that were identified then are still apparent.

What are the disadvantages and advantages of the non-binding nature of the Guiding Principles?

An obvious disadvantage of the non-binding nature of the Guiding Principles is the fact that States cannot be held accountable if they disregard them and that, as such, they cannot be invoked in legal proceedings at the domestic level.

Not overestimate this weakness as it is always possible to invoke the hard law that lies behind the Guiding Principles where necessary.

Overall, the non-binding character of the document has been an advantage, and where the Guiding Principles were met with resistance, it was not because of their content but because of a suspicion that they might be binding regardless of all assertions to the contrary.

Experience has also shown that some governments and domestic courts are ready to use the Guiding Principles in a legal sense insofar as they incorporate them into domestic law or policies or accept them as a valid expression of what human rights conventions ratified by that country mean in situations of internal displacement. Several governments have accepted the authoritative character of the Guiding Principles in this sense, for example in Burundi or Angola, as has the Supreme Court of Colombia.

The same has happened at the international level where the Inter-American Commission on Human Rights, UN Treaty Bodies, Special Rapporteurs of the UN Human Rights Commission, the General Assembly and even the UN Security Council have referred to the Guiding Principles either as a valid restatement of present international law or as a useful tool for properly addressing situations of internal displacement.

Kampala ConventionKampala Convention

The Convention builds on international The Convention builds on international humanitarian law and international human humanitarian law and international human rights law, as well as the Guiding Principles on rights law, as well as the Guiding Principles on Internal Displacement. The Kampala Internal Displacement. The Kampala Convention's objectives include promoting and Convention's objectives include promoting and strengthening regional and national measures strengthening regional and national measures to prevent, mitigate, prohibit, and eliminate to prevent, mitigate, prohibit, and eliminate the root causes of internal displacement. The the root causes of internal displacement. The Convention also aims to provide for the Convention also aims to provide for the responsibilities and roles of armed groups and responsibilities and roles of armed groups and non-state actors with respect both to non-state actors with respect both to preventing internal displacement and to preventing internal displacement and to protecting and assisting IDPs protecting and assisting IDPs

Before Displacement - preventing displacement from Before Displacement - preventing displacement from happeninghappening

One of the aims of the Kampala Convention is to prevent One of the aims of the Kampala Convention is to prevent

displacement. It prohibits arbitrary displacement, and requires displacement. It prohibits arbitrary displacement, and requires states to take preventive measures to protect people from states to take preventive measures to protect people from displacement in line with their obligations under international displacement in line with their obligations under international law.law.

It provides that people should be protected against displacement It provides that people should be protected against displacement resulting from conflict and violence, discriminatory policies or resulting from conflict and violence, discriminatory policies or human rights violations. It also states that displacement should human rights violations. It also states that displacement should not be used as a method of warfare or as collective punishment. not be used as a method of warfare or as collective punishment. In the case of natural or man-made disaster, forced evacuations In the case of natural or man-made disaster, forced evacuations should only take place for reasons of health and safety.should only take place for reasons of health and safety.

It calls on states to establish early warning systems and adopt It calls on states to establish early warning systems and adopt disaster preparedness and management measures to prevent disaster preparedness and management measures to prevent displacement caused by natural disaster.displacement caused by natural disaster.

In the case of development projects, carried out by public or In the case of development projects, carried out by public or private actors, forced relocation must be justified by “compelling private actors, forced relocation must be justified by “compelling and overriding public interest”. States must ensure that other and overriding public interest”. States must ensure that other alternatives are explored and that socio-economic and alternatives are explored and that socio-economic and environmental impacts are assessed beforehand. States also environmental impacts are assessed beforehand. States also have a duty to inform and consult people who are likely to be have a duty to inform and consult people who are likely to be displaced.displaced.

During DisplacementDuring Displacement

The Kampala Convention provides that states The Kampala Convention provides that states have the primary responsibility for providing have the primary responsibility for providing assistance to internally displaced people (IDPs). assistance to internally displaced people (IDPs). They are obliged to assess their needs and They are obliged to assess their needs and vulnerabilities and those of the host communities vulnerabilities and those of the host communities – or to facilitate such assessment – and to – or to facilitate such assessment – and to provide adequate assistance.provide adequate assistance.

Internally displaced people are entitled to the full Internally displaced people are entitled to the full protection of their rights on the same basis as protection of their rights on the same basis as other citizens and residents of the country. They other citizens and residents of the country. They should not be discriminated against on grounds should not be discriminated against on grounds of their displacement or any other grounds, such of their displacement or any other grounds, such as their race, ethnicity, or political affiliation.as their race, ethnicity, or political affiliation.

Ending DisplacementEnding Displacement

The Kampala Convention calls on states to seek The Kampala Convention calls on states to seek lasting solutions to internal displacement. It lasting solutions to internal displacement. It states that internally displaced persons (IDPs) states that internally displaced persons (IDPs) have the right to choose freely between have the right to choose freely between returning home, integrating locally in areas of returning home, integrating locally in areas of displacement or relocating to another part of the displacement or relocating to another part of the country. For each of these options, states are country. For each of these options, states are responsible for ensuring that the conditions are responsible for ensuring that the conditions are satisfactory and sustainable.satisfactory and sustainable.

IDPs must also be provided with information IDPs must also be provided with information allowing them to make a free and informed allowing them to make a free and informed choice on whether to return, integrate or relocate choice on whether to return, integrate or relocate elsewhere in the country.elsewhere in the country.

ImplementationImplementation

The Kampala Convention underlines that states have the The Kampala Convention underlines that states have the primary responsibility for providing protection and primary responsibility for providing protection and humanitarian assistance to IDPs. In order to meet that humanitarian assistance to IDPs. In order to meet that obligation, they have to develop appropriate laws, policies obligation, they have to develop appropriate laws, policies and strategies. and strategies.

There is not one single way to incorporate international There is not one single way to incorporate international obligations, but in all cases, a few preliminary steps are obligations, but in all cases, a few preliminary steps are necessary: assessing the existing national laws and policies, necessary: assessing the existing national laws and policies, passing necessary laws to address gaps, removing passing necessary laws to address gaps, removing provisions not in line with the Convention, and taking the provisions not in line with the Convention, and taking the necessary steps for implementation.necessary steps for implementation.

Several African states, including Angola, Burundi, Liberia, Several African states, including Angola, Burundi, Liberia, Sierra Leone, Sudan and Uganda, have already developed Sierra Leone, Sudan and Uganda, have already developed national laws and policies based on the national laws and policies based on the IDP Guiding PrinciplesIDP Guiding Principles. Others have drafted laws and policies . Others have drafted laws and policies and some use the Guiding Principles as their main and some use the Guiding Principles as their main framework for responding to situations of internal framework for responding to situations of internal displacement.displacement.