1. Introduction Definitions Historical background and legal instruments Current situation and issues 10

Transcription

1 HRC STUDY GUIDE

2 1. Introduction.2 2. Definitions 3 3. Historical background and legal instruments 6 4. Current situation and issues Useful bibliography and case studies..11

3 Topic B:Strengthening Human Rights of Returnees and Internally Displaced Persons (IDPs) in Conflict-Ridden Regions 1. Introduction While forced displacement is a humanitarian crisis, it also has significant developmental impacts affecting human and social capital, economic growth, poverty reduction efforts, and environmental sustainability. Forced displacement has an important bearing on meeting the MDGs (Millennium Development Goals), since displaced populations tend to be the poorest and often experience particularly difficult access to basic services. 1 1 HarildChristensen, The Development Challenge of Finding Durable Solutions for Refugees and Internally Displaced Persons, 2011.

4 With ongoing armed conflict in several regions of the world, there are thousands of people that have to leave their homes and communities every day; in doing so, they are also escaping from the threat of war, rape, or famine.many try to escape these threats by crossing national borders and seeking asylum, thereby receiving support from national and international organizations, non-governmental organizations (NGOs), and the media.often, however, people escape their local regions and move within their country they are therefore called Internally Displaced Persons (IDPs) and although they face the same challenges as refugees, they do not have the same legal rights as refugees and do not receive the same level of support and attention and are therefore particularly vulnerable to human rights abuses.another group that faces these problems during and after conflict are returnees. Returnees are former refugees who return to their country of origin and try to reintegrate into their community.as these groups of individuals have either never crossed a national border or returned to their home country, they qualify as citizens of another state and it is therefore difficult for them to get support from international instruments or standards, which were designed for refugees.their needs and rights have not been established in the international legal framework and it is therefore necessary to create specific instruments and documents to strengthen and protect the human rights of returnees and IDPs. 2. Usefuldefinitions Defining IDPs

5 Statistics on IDPs began to be collected in 1982 and at that time, 1.2 million IDPs were identified in 11 different countries. 2 This number increased dramatically in the 1990s and by 2006 there were an estimated 25 million IDPs in more than 50 countries. 3 This dramatic increase shows the need for international standards in order to protect IDPs; concerns over their vulnerability led the UN Commission on Human Rights, a former functional commission of the ECOSOC replaced in 2006 by the Human Rights Council (HRC), to ask former Representative of the Secretary-General on IDPs, Francis Deng, to develop a framework for IDPs 4.Supported by a team of international legal experts, in 1998 he presented the "Guiding Principles on Internal Displacement" to the Commission. 5 According to those principles, 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 6 2 Internal Displacement Monitoring Center. Guiding Principles on Internal Displacement. 3 Internal Displacement Monitoring Center. Internal Displacement. Global Overview of Trends in 2006, 2006, p Internal Displacement Monitoring Center, The Definition of an Internally Displaced Person (IDP), Internal Displacement Monitoring Center, The Definition of an Internally Displaced Person (IDP), Office of the High Commissioner of Human Rights, Guiding Principles on Internal Displacement, 2004, p. 1

6 This definition highlights two elements, namely the involuntary character of movement and the fact that such movement takes place within national borders. 7 Concerning international law, the legal situation of refugees and IDPs differ from each other. 8 Although IDPs receive the same legal protection of international human rights law and international humanitarian law, they do not benefit from the protection mechanisms of international refugee law since they have never crossed an international border. This makes them particularly vulnerable to human rights abuses and neglect. 9 However, they do receive support from the Special Rapporteur of the Secretary-General on the Human Rights of IDPs who acts as a global advocate for IDPs.The current Special Rapporteur is Dr. Chaloka Beyani, who regularly reports to the General Assembly and to the Human Rights Council and also conducts dialogues with governments and other actors about the rights and the needs of IDPs.Further activities include ensuring that the Guiding Principles on Internal Displacement are complied with, taking action with governments and other actors on specific situations of internal displacement, also by making country visits, and finally to sponsor national and regional seminars on issues related to internal displacement. 10 Defining Returnees The term returnee is used by the international community for a person that has been a refugee, but that has recently returned to his or her country of origin.in order to be identified as a returnee, a person therefore 7 Internal Displacement Monitoring Center. Guiding Principles on Internal Displacement, n.d. 8 Office of the High Commissioner for Human Rights, Monitoring and Protecting the Human Rights of Refugees and/or Internally Displaced Persons Living in Camps, 2001, p Office of the High Commissioner for Human Rights, Monitoring and Protecting the Human Rights of Refugees and/or Internally Displaced Persons Living in Camps, 2001, p United Nations High Commissioner for Refugees, Handbook for the Protection of Internally Displaced Persons, 2006, p. 27.

7 has to have a prior refugee status. 11 When a refugee makes the decision to return to his or her home country, this is usually because the threat that caused him or her to leave has been resolved or at least diminished, or the situation of the country in which the individual became a refugee has become worse than the one in the country of origin and it would be safer to return home.in some cases, refugees are even forced to return by the host government or other factors, even though this is against international law.like the term IDP, the term returnee is a descriptive one but not a legal designation - which acknowledges the fact that returning refugees are in need of support andassistance, and protection over a certain period of time until they have re-integrated into their communities. It is impossible to define this period of time in which a person can be identified as a returnee, since this will be different in each specific situation. 12 A current example for the challenges that returnees have to face is South Sudan. The country gained its independence on July 9, 2011; however, there are still several key issues to be resolved and one of them is to support the thousands of returnees to come home. 13 Between October 2011 and May 2012, more than 387,000 people originating from South Sudan crossed the border from the north.another 500,000 people who have been living in the north for the last 30 years may choose or be forced to return to the south.furthermore, in May 2011, the Sudanese government gave notice that ethnic South Sudanese should either formally obtain their citizenship in the north or leave imminently, which prompted even more people to cross the border.most returnees face many challenges during their journey back home due to heat exhaustion and the increased 11 Office of the High Commissioner for Human Rights, Monitoring and Protecting the Human Rights of Returnees and Internally Displaced Persons, 2001, p Office of the High Commissioner for Human Rights, Monitoring and Protecting the Human Rights of Returnees and Internally Displaced Persons, 2001, p United Nations High Commissioner for Refugees, 2012 UNHCR country operations profile - South Sudan, 2012.

8 risk of epidemic diseases, such as measles, diarrhea, and HIV. Furthermore, once they arrive in South Sudan, it is difficult for them to find adequate housing as well as access to food, sanitation, educational facilities, and health care since these resources are already limited in the country Historical background and legal instruments One of the challenges that faces the international community in the protection of IDPs is the absence of any legal regime for the protection of IDPs. The approaches that have been adopted in order to address this problem in the interim are mainly policy and operational. On the policy level, the Guiding Principles on Internal Displacement, which was published in 1998, has served as a sort of tool through which the existing legal regimes, namely International Humanitarian Law and International Human Rights Law were used to identify the rights of IDPs and subsequently used for their protection. At the operational level, a 14 British Red Cross, South Sudan Red Cross responds to returnee crisis, 2012

9 Collaborative Approach, 15 has been adopted, which entails the collaboration of existing UN Organizations such as the World Health Organization, World Food Programme and UNHCR in their operations. Such an approach creates the basis for the collaboration of their efforts in providing support for the increasing numbers of IDPs. The policy and operational approaches are similar in that they are an amalgamation of existing structures, both cautiously navigating around this issue of sovereignty, with decidedly mixed results. Importantly, the history of the involvement of the international community with IDP issues dates back to July 1992 when the former United Nations Secretary General, Boutros Boutros-Gali, decided to investigate the issue of IDPs in order to assess the UN s role in best affording them protection. Dr. Francis Deng, a former Sudanese diplomat, was appointed as the Representative of the Secretary General on Internally Displaced Persons. He was tasked to investigate the problem facing this category of people and how best to protect within the existing international legal regimes. By March 1993, Deng s report to the Commission on Human Rights made a thorough assessment of internally displaced persons and strongly recommended that the UN immediately mobilize and coordinate its efforts in order to provide assistance, create earlywarning systems and to create a code, declaration or convention specifically designed for IDPs. Although these were ambition recommendations, it certainly marked a major milestone in the quest to provide protection for IDPs. 15 Although the second generation approach has been termed the Sectoral Approach, and the third generation is called the Cluster Approach. However, all of these three approaches are essentially slight evolutionary changes made, based on the Collaborative Approach

10 Unfortunately, ten years after these recommendations were made, nothing has been realized to this effect. By and large, the major hindrance has been the hesitancy of the international community to translate their vocal support into tangible resources most importantly, financially. To begin with, Deng was already operating with ad hoc sources of funding and this undermined Deng s ambitions. Not surprisingly, by 1996, Deng concluded that there was simply no political will to create a designated organization that would be solely in charge of protecting and assisting IDPs. The Guiding Principles on Internal Displacement Despite his conclusion about the lack of political will on the part of the international community to address this issue, Deng and his team made a laudable achievement by producing the Guiding Principles on Internal Displacement (GP). As a tool that explained theexisting international humanitarian laws, it has served as a non-binding piece of soft law; developed in co-operation with many state and non-state actors. 16 The GP has therefore been used as a legal lens to interpret how IHL 17 and IHRL, 18 and implicitly, refugee law, 19 would be applicable to IDPs. The GPs were developed as a document to interpret the law in a manner that 16 While drafts of the GP were endorsed by government officials, the final drafts were done by a majority of non-state actors, which created some unrest, as governments were unhappy that this document would have been born what appeared to be outside of thee state system. This concern eventually subsided, as the GP now have been widely disseminated among states. However, it is an important point to note that the GP were seen to have been conceived in an initially unorthodox manner. 17 International Humanitarian Law (IHL), encompasses the Hague Conventions, the Geneva Conventions (GC) and the Additional Protocols (AP) of 1977, and deals specifically with how people, both combatants and non-combatants, are treated in times of armed conflict. 18 International Human Right Law (IHRL) looks at human rights in all other cases, and is not limited to armed conflict. This set of laws, which outlines the rights of human beings, and is mostly comprised of customary international law and made up of various declarations and treaties which are used as instruments to enact this law. 19 Refugee law is also indirectly drawn upon in trying to identify the areas of vulnerabilities which aid and assistance for IDPs would need to be clarified.

11 would address the ambiguities in how the law should be applied to IDPs, as well as fill in the existing gaps in protection. It comprises 30 principles which are divided into the following sections, summarized below: 1. General Principles This section states that IDPs should enjoy the same rightsas any other citizen, and that these rights should be observed by all, including national authorities. 20 Crucially, it states in Principle 3 that, National authoritieshave the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction Principles Relating to Protection From Displacement This section notes that persons have the right not to be arbitrarily displaced, 22 and again, points out that it is incumbent on authorities to ensure this happens. 3. Principles Relating to Protection During Displacement This set of principles asserts that during displacement, persons have the right to be protected againstvulnerabilities they may be exposed to, such as murder, arbitrary executions or indiscriminate attacks. 23 Furthermore, it notes that IDPs have the right to seek safety wherever they chose, and access to all means of survival. 4. Principles Relating to Humanitarian Assistance This section is of particular importance, as it makes provisions that humanitarian assistance shall not be diverted or arbitrarily denied for any reason whatsoever. 24 It says that the primary responsibility of such assistance must be carried by 20 Deng, Francis M. United Nations. Guiding Principles on Internal Displacement. 11 Feb Oct. 2006, Principles 1 & 2 21 Ibid, Principle Ibid, Principle Ibid, Principle Ibid, Principle 24.

12 national authorities. 25 However it also stresses that humanitarian assistance by outside partners shall be considered acts of good faith, not as an intrusion into the internal affairs of states, and such assistance shall be appropriately facilitated by the government. 5. Principles Relating to return, Resettlement and Reintegration This final set ofprinciples note that IDPs have the right to be fully resettled whendisplacement ends, and that authorities should help facilitate this process with assistance of humanitarian organizations. The principles are designed to provide a framework in identifying the rights that need to be invoked during times of displacement in order to ensure the protection needs for IDPs. Walter Kalin, one of the key legal experts that drafted the GP, and now current RSG, explains the reasons why a softer approach was taken, rather than a hard-line treaty which would bind states to protection. Firstly, at the time, it was felt that treaty-making in the area of human rights was simply too tedious a process. States, especially those with poor human rights records, would delay the process of ratifying it and something was quickly needed to address the issue of IDPs. Secondly, it was also felt that drafting a treaty combining IHL and IHRL would undermine what existing international law was supposed to already provide for. Kalin argues: "In the case of the GP, all these difficulties would have increased the risk of not 25 Ibid, Principle 25.1.

13 having an effective normative framework in place for IDPs for a long time". 26 Based on the circumstances of the time, Deng, Kalin and their colleagues formulated the best response that they felt would be most likely to be accepted by the international community. However, the circumstances surrounding IDPs continue to get worse, and the international community is slowly becoming more willing to invest in the issue of internal displacement. 4.Current Situation Despite the slow pace at which the international community has used these principles, the GPs have been used as a framework in countries such as Angola and Columbia to form the basis for national legislation on IDPs, which is ideally what the GP is supposed to accomplish. 27 Additionally, the GP has gained significance in the international system, with resolutions in both the Commission on Human Rights and the 26 Kalin, Walter. "How Hard is Soft Law? the Guiding Principles on Internal Displacement and the Need for a Normative Framework." Ralph Bunche Institute for International Studies. Roundtable Meeting. CUNY Graduate Center, New York. 19 Dec Nov < 27 Kalin, Walter. "The Role of the Guiding Principles on Internal Displacement." Forced Migration Review (2005): Oct <

14 General Assembly referring to them as an important tool in assessing the needs of the internally displaced. Regional organizations have been encouraged to utilize the GP as a framework for monitoring situations of internal displacement. Furthermore, NGOs that have been involved with assisting IDPs use the GP as a way to guide their efforts and as an advocacy tool on behalf of IDPs. 28 However, despite the relative successes of the GP, it must be kept in mind that they are a piece of soft law, and therefore do not have legal status or weight. States are not obliged to adopt the GP into their national legislation, and are only bounded by the actual IHL and IHRL. The GP is merely a lens upon which to interpret the law, taking into account what refugee law provides and looking at what IHL and IHRL generally is meant to provide for, whether displaced or not. 6. Useful Bibliography and case studies 28 Cohen, Roberta. "Strengthening Protection of IDPs: the UN S Role." Georgetown Journal ofinternational Affairs (2006):

15 Entswisle, H. (2010). The end of the road? A Review of the UNHCR s role in the return and reintegration of internally displaced populations. Geneva, Switzerland: Office of the High Commissioner for Human Rights. This paper gives an overview over the background of the UNHCR and its involvement with IDPs and discusses its role and its achievements. The author also analyzes the challenges the UNHCR has to face during its commitment and introduces potential solutions to address them. It also presents six comprehensive case studies (Colombia, Georgia, Pakistan, Southern Sudan, Sri Lanka and Uganda) in which those challenges and possible solutions are further analyzed. Internal Displacement Monitoring Center (2011). The Definition of an Internally Displaced Person (IDP). Retrieved on August 12, 2012, from: 0F ?OpenDocument The Internal Displacement Monitoring Center (IDMC) website is especially helpful for a general overview on what IDPs are and why they are particularly vulnerable. It provides definitions and guiding principles and also focuses on special groups of IDPs that need particular attention such as women and children. Furthermore, it has published several reports that present durable solutions for the situation of returnees and IDPs and gives many country examples. Internal Displacement Monitoring Center (2012). Uganda: Need to focus on returnees and remaining IDPs in transition to Development. Retrieved October 1, 2012 from:

16 352A30/$file/uganda- overview-may2012.pdf This report focuses on Uganda, but it will nevertheless be helpful for all delegates, because it presents a wide range of solutions that could maybe adapted to other countries or that could serve as inspiration for further solutions. It focuses on the main issues of IDPs and returnees, access to basic services and land issues and also summarizes the national and international actions that have been undertaken to address the challenges they have to face. The report furthermore lists a lot of sources that delegates could use as research. Internal Displacement Monitoring Center (2012). The Neglected Generation. The Impact of Displacement on older people. Retrieved August 12, 2012 from: 7A21002EC242/$file/help age-idmc-the-neglected-generation-june2012.pdf This report focuses on the problems and risks elderly IDPs have to face during their displacement. The report finds that the main challenges of protecting the human rights of elderly IDPs include getting access to older persons that are left behind when other more able-bodies IDPs flee, providing appropriate health care, reuniting them with their families, and ensuring social support and income. Internal Displacement Monitoring Center. (2012). Internal displacement in Africa: A

17 development challenge. Exploring development initiatives to alleviate internal displacement caused by conflict, violence and natural disasters. Retrieved on August 12, 2012 from: 7A1B002F5020/$file/inter nal-displacement-in-africa-development-challenge-2012.pdf Although this report focuses on IDPs in Africa, it will be very helpful for delegates since more than one third of all IDPs worldwide live in Africa and it is therefore the region with the highest number of IDPs and they actually outnumber refugees by five to one. The report gives a detailed explanation for all the different reasons and causes for displacement and introduces many proposals on what different kind of actions could be taken to improve the situations of IDPs. Furthermore, it provides delegates with several useful case studies.