Protection of Internally
Displaced Persons
IML Course
IOM-UNITAR
UN HQ NY
June 2011
Why IDPS are especially
vulnerable








May be in transit from one place to another, may be
in hiding, may be forced towards unhealthy or
inhospitable environments
Social organization destroyed or damaged
May experience profound psychosocial distress
Removed from sources of income and livelihood
Schooling disrupted
May be displaced to areas where local inhabitants
are of different groups or inhospitable
Armed combatants might question loyalty
May lack identity documents
IDPs have special needs ...
Problems usually not faced by those who remain in
their homes:
– Lack of shelter and problems related to camps
– Loss of property and access to livelihoods
– Discrimination because of being displaced
– Lack of identity cards
– Lack of access to services
– Lack of political rights
– Restitution of/compensation for lost property
– Problems of return and integration
... and are especially vulnerable
IDPs run a higher risk than those remaining at
home:
– to have their children forcibly recruited
– to become victims of gender-based violence
– to become separated from family members
– to be excluded from education
– to be without a job
– to be excluded from political participation.
Protection Gap



Primary responsibility rests with
the State
State may be unable or unwilling
to provide protection
“Protection Gap”—international
community 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 ideas
1. Although internally displaced persons have
departed from their homes, unlike refugees they
have not left the country whose citizens they
normally are:
 They can invoke all human rights and IHL
guarantees available to the citizens of that
country.
 Applicability of refugee law is not possible.
A separate category
Why a special category?



Shared characteristics and particular
vulnerabilities
Need to delineate the circumstances
Beneficiaries must be identified in
order for their needs to be met
Definition

"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
generalised violence, violations of
human rights or natural or humanmade disasters, and who have not
crossed an internationally recognised
State border."
The Guiding Principles on Internal
Displacement


1992: Creation of the mandate of the
Representative of the UN Secretary General on
Internal Displacement
Areas of activities:
– Promoting Respect for the Human Rights of the Internally Displaced
– Dialogue with Governments, Non-Governmental Organizations and Other
Actors
– Strengthening the International Response to Internal Displacement
– Mainstreaming the Human Rights of IDPs in the UN System

1998: Guiding Principles on Internal Displacement


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: developments
1998: Guiding Principles on Internal Displacement
2005: World Summit: Recognition as “important
international framework for the protection” of IDPs
2009: Convention of the African Union on Protection
and Assistance to IDPs – Kampala Convention
Content of the Guidelines





Section I: General Principles (1-4)
Section II: Protection from
Displacement (5-9)
Section III: Protection during
displacement (10-23)
Section IV: Humanitarian Assistance
(24-27)
Section V: Post-Displacement Phase
(28-30)
General Principles




IDP definition
Principle of equality before the law
Principle of non-discrimination
Primary responsibility of the national authorities
Country A: Internal Conflict
External to Country A
Guiding Principles
Human Rights
Law
• Dignity
• Universal
• Inalienable
• Indivisible• Interrelated• Interdependent
Peace
International
Humanitarian
Law
•Law of Armed
Conflict
•The Geneva
Conventions
Conflict
Refugee Law (by analogy non refoulement)
5 important points!
1.
2.
3.
4.
All human beings are entitled to fundamental
rights & freedoms, including IDPs.
The GP authoritatively consolidate into one
document, relevant rights, norms, obligations.
The GP are derived from binding, existing law.
Many nations have signed treaties or are subject
to HR or IHL—which makes the GP binding upon
their actions in their countries.
The GP seeks clarification on unclear areas and
fills gaps regarding the particular needs of the
internally displaced.
Four groups of relevant rights
1.
Rights related to physical security and integrity (e.g., rights
to life and to be free of torture, assault, rape, etc);
2.
Basic rights related to basic necessities of life (e.g., the rights
to food, potable water, basic health, shelter);
3.
Rights related to other economic, social and cultural
protection needs (e.g., the rights to work, receive restitution
or compensation for lost property, and education); and
4.
Rights related to other civil and political protection needs
(e.g., the rights personal documentation, political participation,
access to courts, and freedom of movement).
Principle 12
1)
Every human being has the right to
General
liberty and security of person. No one
shall be subjected to arbitrary arrest or
detention
Derived from:
UDHR articles 3 and 9
ICCPR article 9 (1)
Principle 12
1)
Every human being has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or
detention
2)
To give effect to this right for internally displaced persons,
they shall not be interned in or confined to a camp. If in
Applicable
exceptional circumstances such internment or confinement is To IDPs
absolutely necessary, it shall not last longer than required by
the circumstances.
3)
Internally displaced persons shall be protected from
discriminatory arrest and detention as a result of their
displacement.
Applicable
To IDPs
4)
In no case shall internally displaced persons be taken
hostage.
Applicable
To IDPs
General
Principle 17 (1)

Every human being has the right to
respect for his or her family life
(The ‘General’ principle derived from
Universal Declaration of HR, Article 16,
the Fourth Geneva Convention; Article
27, & the ICCPR, Article 23)
Principle 17 (2-4)

To give effect to this right for internally displaced
persons, family members who wish to remain together
shall be allowed to do so.

Families which are separated by displacement should be
reunited as quickly as possible. All appropriate steps shall
be taken to expedite the reunion of such families,
particularly when children are involved…

Members of internally displaced families whose personal
liberty has been restricted by internment or confinement
in camps shall have the right to remain together.
GPs address some gaps
E.g. Principle 6

Every human being shall have the
right to be protected against being
arbitrarily displaced from his or her
home or place of habitual residence.
Core humanitarian
principles





Do no harm
Humanitarian imperative
Neutrality
Impartiality
Provision of protection
STATUS OF GUIDING PRINCIPLES

An authoritative consolidation of rights

Not a substitute for other instruments

Provide guidance on the applicable rights
Internally displaced person experience a very special
factual situation and, therefore, have specific
needs.
The GPs restate in more detail those legal provisions
which respond to the specific needs of IDPs and
make explicit guarantees protecting IDPS that are
inherent in IHL and IHRL.
Not a binding instrument but a highly authoritative
document.
Prevention from displacement

Prohibition of arbitrary displacement
– Based on policies of apartheid or ethnic cleansing
– In situations of armed conflict, unless the security
of civilians or imperative military reasons so
demand
– In cases of large-scale development projects not
justified by compelling public interest
– In case of disasters unless the safety of persons
requires their evacuation
Guiding Principle 28
1. 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.

Evaluation

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 nonbinding 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 Convention

The Convention builds on international
humanitarian law and international human rights
law, as well as the Guiding Principles on Internal
Displacement. The Kampala Convention's objectives
include promoting and strengthening regional and
national measures to prevent, mitigate, prohibit,
and eliminate the root causes of internal
displacement. The Convention also aims to provide
for the responsibilities and roles of armed groups
and non-state actors with respect both to
preventing internal displacement and to protecting
and assisting IDPs





Before Displacement - preventing displacement from
happening
One of the aims of the Kampala Convention is to prevent displacement.
It prohibits arbitrary displacement, and requires states to take
preventive measures to protect people from displacement in line with
their obligations under international law.
It provides that people should be protected against displacement
resulting from conflict and violence, discriminatory policies or human
rights violations. It also states that displacement should not be used as
a method of warfare or as collective punishment. In the case of natural
or man-made disaster, forced evacuations should only take place for
reasons of health and safety.
It calls on states to establish early warning systems and adopt disaster
preparedness and management measures to prevent displacement
caused by natural disaster.
In the case of development projects, carried out by public or private
actors, forced relocation must be justified by “compelling and
overriding public interest”. States must ensure that other alternatives
are explored and that socio-economic and environmental impacts are
assessed beforehand. States also have a duty to inform and consult
people who are likely to be displaced.
During Displacement


The Kampala Convention provides that states have
the primary responsibility for providing assistance
to internally displaced people (IDPs). They are
obliged to assess their needs and vulnerabilities and
those of the host communities – or to facilitate such
assessment – and to provide adequate assistance.
Internally displaced people are entitled to the full
protection of their rights on the same basis as other
citizens and residents of the country. They should
not be discriminated against on grounds of their
displacement or any other grounds, such as their
race, ethnicity, or political affiliation.
Ending Displacement


The Kampala Convention calls on states to seek
lasting solutions to internal displacement. It states
that internally displaced persons (IDPs) have the
right to choose freely between returning home,
integrating locally in areas of displacement or
relocating to another part of the country. For each
of these options, states are responsible for ensuring
that the conditions are satisfactory and sustainable.
IDPs must also be provided with information
allowing them to make a free and informed choice
on whether to return, integrate or relocate
elsewhere in the country.
Implementation



The Kampala Convention underlines that states have the primary
responsibility for providing protection and humanitarian assistance to
IDPs. In order to meet that obligation, they have to develop
appropriate laws, policies and strategies.
There is not one single way to incorporate international obligations,
but in all cases, a few preliminary steps are necessary: assessing the
existing national laws and policies, passing necessary laws to address
gaps, removing provisions not in line with the Convention, and taking
the necessary steps for implementation.
Several African states, including Angola, Burundi, Liberia, Sierra
Leone, Sudan and Uganda, have already developed national laws
and policies based on the IDP Guiding Principles. Others have drafted
laws and policies and some use the Guiding Principles as their main
framework for responding to situations of internal displacement.