Insufficient International Responsibility for Internally Displaced Persons

While refugees come under the mandate of UNHCR, there is no international institution with a general mandate, or one with the overall means, to protect and provide concrete assistance to individuals displaced within their own State. Yet many of these people face the same needs of assistance and protection as refugees.

The mandate of UNHCR was expanded several times by the UN General Assembly, notably by its Resolution 53/125 (1998), to enable it to take charge of situations concerning IDPs. With the government’s agreement, UNHCR can set up material assistance programs for IDPs; however, there is no permanent universal legal instrument aimed at protecting individuals in such situations. UNHCR’s protective role therefore depends entirely on the negotiation and content of the ad hoc agreements that must be signed with the government concerned. This means that UNHCR’s actions, and any form of protection aimed at such populations, are largely dependent on the goodwill of States. In 2001, UNHCR refocused its operations and its mandate with regard to refugees. It now limits its actions to IDPs in situations where the following conditions are met: the Secretary-General of the United Nations has explicitly requested UNHCR to intervene through OCHA, where additional means are granted; the country concerned has agreed to the action, so that adequate security is provided.

In 1992, a special representative to the UN Secretary-General was created specifically to follow the issue of IDPs; Mr. Francis Deng was appointed. He compiled humanitarian law, human rights, and refugee law rules that are applicable to IDPs. In 1996, the special representative compiled and analyzed international norms that apply to situations of displacement. The study showed that because of gaps in the existing law, some IDPs’ needs with regard to protection and assistance remained uncovered. The General Assembly and the United Nations Commission for Human Rights asked the special representative to draft a set of Guiding Principles on Internal Displacement, aimed at clarifying and consolidating displaced persons’ rights.

The thirty guiding principles were adopted at the 1998 session of the UN Commission on Human Rights (today the UN Human Rights Council). They reflect international human rights and humanitarian law, restating existing norms and tailoring them to the needs of the displaced persons. While they are not legally binding, the Inter-Agency Standing Committee and the Office for the Coordination of Humanitarian Affairs has repeatedly recommended that these principles be applied during dialogue with governments and when providing assistance to IDPs.

The mandate of the special representative is limited, since he has no direct protection or assistance functions toward the IDPs. Nevertheless, NGOs can transmit information concerning human rights and humanitarian law violations committed against IDPs to him. In September 2004, the UN Secretary-General appointed Mr. Walter Kälin as Mr. Francis Deng’s successor. Dr. Chaloka Beyani from Zambia was subsequently appointed by the Human Rights Council in September 2010 as the new Special Rapporteur on the Human Rights of Internally Displaced Persons.

In his final report, released in January 2010, Mr. Walter Kälin asserted that the authority of the Guiding Principles has been consolidated at the international level. Indeed, the heads of State and government assembled in New York for the World Summit of September 2005 unanimously recognized the Guiding Principles as an “important international framework for the protection of internally displaced persons.” Most recently in March 2010, the General Assembly adopted Resolution 64/162, which recognized that “the protection of internally displaced persons has been strengthened by identifying, reaffirming and consolidating specific standards for their protection.” Mr. Walter Kälin contends that there are some indications that the Guiding Principles are emerging as customary law. Although they are not a binding international instrument, they tend to be translated into domestic legislation and regional conventions.

In November 2006, the International Conference on the Great Lakes Region adopted the Great Lakes Protocol on Protection and Assistance to Internally Displaced Persons, which obliged the eleven Member States of the Conference to incorporate the UN Guiding Principles into their domestic law. These States are Angola, Burundi, Central African Republic, Congo, Democratic Republic of Congo, Kenya, Uganda, Rwanda, Sudan, Tanzania, and Zambia.

On 23 October 2009, the African Union signed the Convention for the Protection and Assistance of Internally Displaced Persons in Africa, also known as the Kampala Convention. As of July 2012, thirty-five States have signed the Convention, but only thirteen have ratified it: Benin, Central African Republic, Chad, Gabon, Gambia, Guinea Bissau, Lesotho, Niger, Nigeria, Sierra Leone, Togo, Uganda, and Zambia. Even though it has not yet entered into force (it needs the ratification of fifteen States to do so), this new Convention endorses the definition of IDPs contained in the UN Guiding Principles on Internal Displacement (Art. 1.k) and spells out commitments for the protection and assistance of IDPs by States Parties directly deriving from the content of the guiding principles. The Kampala Convention contains provisions on obligations relating to States Parties (Art. 3), which are to ensure respect for the principles of humanity and the human dignity of IDPs; to respect and ensure the protection of the human rights of IDPs, including non-discrimination and equal protection of law; to respect international humanitarian law; and to ensure assistance to IDPs as well as promote self-reliance (Art. 3). The Convention also foresees an obligation of mutual assistance between States. Indeed, where available resources are inadequate to enable States to provide sufficient protection and assistance to IDPs, they shall cooperate and seek the assistance of international and humanitarian organizations. It also provides grounds for intervention (Art. 8) in the case of war crimes, genocide, and crimes against humanity, in line with the relevant provisions of the African Union Charter. Finally, the Convention contains provisions on relocation (Art. 11).

In 2002, an Internal Displacement Unit was created within OCHA. In July 2004, it became the Inter-Agency Internal Displacement Division (IDD). It consists of a dozen international staff on secondment from the UN, and it is directed by Mr. Dennis McNamara. The Division is housed within OCHA in Geneva and also has a delegation in New York. It does not directly run field operations. The mandate of the Division is to make the UN collaborative response approach work by rallying the United Nations’ agencies in order to provide efficient assistance and protection to displaced people. It relies on a network of resident coordinators and field-based United Nations coordinators to address humanitarian issues and works in close cooperation with the United Nations High Representative for Displaced People. Concretely, the Division publishes reports on missions it undertakes on the ground and makes recommendations to countries. The IDD regularly provides specific support to UNHCR and UNDP, which are the cluster leads in four sectors of particular concern, namely Protection, Emergency Shelter, Camp Coordination/Management, and Early Recovery. The IDD’s objective since 2006 has been to support the strengthening of the inter-agency arrangements and capacities of United Nations agencies along the UN cluster reform.

In 1998, the Internal Displacement Monitoring Centre (IDMC) was established as the leading international body monitoring conflict-induced internal displacement worldwide by the Norwegian Refugee Council. While the Centre does not directly provide assistance to IDPs, its mandate is to contribute to improving national and international capacities to protect and assist the millions of IDPs worldwide. At the request of the United Nations, the IDMC runs an online database that provides comprehensive information and analysis on internal displacement in some fifty countries. Based on its monitoring and data collection activities, the Centre advocates for durable solutions to the plight of the internally displaced in line with international standards. It does not provide direct assistance to IDPs, but it carries out training activities to enhance the capacity of local actors to respond to the needs of IDPs.

▸ Office for the Coordination of Humanitarian Affairs

The apparent normalization of a situation can be dangerous since the protection of IDPs depends on the definition of their rights and of the different humanitarian actors’ responsibilities with regard to the specific protection needs faced by these populations. In practice, the recognition of a state of conflict is what enables humanitarian law to be the basis for their protection. The agencies and relief organizations working with the displaced persons can contribute to the recognition of such a situation.

The massacre that took place in a camp of IDPs in Kibeho, Rwanda, in April 1995 is an example of the potential danger that can result from the inadequate determination of responsibilities. When the Rwandan army attacked the camp, the mandate for protection over this group was scattered among too many actors: the UN military forces (UN-AMIR—the UN Assistance Mission for Rwanda) oversaw the physical protection of the camps (which did not necessarily include the individuals inside them); UNHCR’s authority was only recognized for refugees returning to Rwanda, not for displaced persons who had never left the territory; the UN human rights observers only had a mission to observe, not protect. Above all, it was declared that the country was not in a situation of conflict, the ICRC was absent, and the government did not consider itself under any obligation vis-à-vis this population accused of complicity in the genocide.

In certain cases, IDPs are gathered into specific zones or areas, whether spontaneously or as the result of international or national pressure, where they are meant to be protected. Depending on the status given to these zones, they may either come under the protection of humanitarian law or, conversely, find themselves more exposed to the dangers of war.

▸ Camps ▸ Protected areas and zones

In Times of Peace or Unrest

In times of peace, of internal disturbances or tensions, or if the authorities concerned have not formally recognized a conflict situation, individuals remain under the sole protection of their domestic laws and authorities in conformity with human rights conventions.

• The right to flee individual or collective persecution or danger remains a fundamental human right that must be respected at all times. Closing the border and refoulement of asylum seekers is a violation of fundamental human rights guarantees. Developing a program of assistance for IDPs cannot be considered as a legitimate substitute to the fundamental right to flee.
• Except for the fundamental guarantees (or inalienable rights and freedoms), States can suspend the application of a majority of human rights in times of internal disturbances. ▸ Fundamental guarantees
• Human rights conventions do not set forth concrete relief measures to assist such persons, nor do they posit any rights for humanitarian organizations or personnel.
• Assistance and protection issues related to large-scale use of force or to governmental limitations of rights for safety reasons are poorly covered by human rights regulations.
• There are very few control mechanisms in the field of human rights, and those that exist are set up to determine the existence of violations more than to prevent them. Nevertheless, at all times, including situations of unrest that do not qualify as actual armed conflicts, IDPs are protected by the fundamental guarantees set forth by humanitarian law and the inalienable rights established in human rights conventions. These rights have been complied, harmonized, and complemented in the set of Guiding Principles on Internal Displacement.

▸ Fundamental guarantees ▸ Human rights ▸ Refugees ▸ Refoulement (forced return) and expulsion

In Times of Conflict

If IDPs are victims of a situation of armed conflict, they can benefit from the protection of humanitarian law by virtue of their civilian status. ▸ Civilians ▸ Protected persons ▸ Protection

The laws of international and internal armed conflict take into consideration the fact that armed combat may cause significant population movements. However, the displacement of certain minority communities may be a deliberate policy or military objective, in and of itself, which is why humanitarian law decrees specific rules to protect the fate of IDPs:

• it prohibits forced population displacement;
• it prohibits methods of warfare the primary purpose of which is to spread terror among the civilian population;
• it regulates the conduct of hostilities to prevent military harassment of the civilian population in general, or of certain groups in particular, from causing an exodus or wanderings;
• it authorizes and regulates the provision of relief supplies for civilians so that they will not need to flee because of a shortage of goods essential to their survival;
• finally, it establishes that, at any time and in any place, internally displaced persons must enjoy the fundamental guarantees of humanitarian law. IDPs can thus benefit from significant rights to international assistance and protection as victims of the conflict or as persons deprived of liberty if they have no freedom to leave the camp.

These rules, drawn from the Geneva Conventions and their Additional Protocols, are expressly meant to be applied by the ICRC; however, they should be defended by all agencies and organizations present in such situations. The government in question cannot refuse the presence of the ICRC, nor should it prevent other NGOs to intervene.

▸ Assistance ▸ Camps ▸ Detention ▸ Fundamental guarantees ▸ High Commissioner for Refugees ▸ Human rights ▸ International humanitarian law ▸ Internment ▸ Non-international armed conflict ▸ Office for the Coordination of Humanitarian Affairs ▸ Population displacement ▸ Protected areas and zones ▸ Protected persons ▸ Protection ▸ Refugees ▸ Relief ▸ Special Rapporteurs

@ http://ochaonline.un.org

http://www.internal-displacement.org