LAW. International Human Rights Law. Rights of Internally Displaced Persons

Transcription

1 LAW International Human Rights Law Rights of Internally Displaced Persons

2 Role Name Affiliation Principal Investigator Prof. (Dr.) Ranbir Singh Vice Chancellor, National Law University, Delhi Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law University Delhi Paper Coordinator Dr. Srinivas Burra Assistant Professor, South Asia University, New Delhi Content Writer/Author Vinai Kumar Singh Assistant Professor, Indian Society of International Law, New Delhi Content Reviewer Dr. Anupam Jha Assistant Professor (Senior Grade) Faculty of Law University of Delhi Delhi DESCRIPTION OF MODULE Items Subject Name Paper Name Module Name/Title Module Id Objectives Key words Description of Module Law International Human Rights Law Rights of Internally Displaced Persons To study the rights of internally displaced persons Internally displaced persons, rights of IDPs, protection, international law, human rights, Guiding Principles, Kampala Convention LEARNING OUTCOME This module will elaborate on the right of internally displaced persons. Earlier phase of international laws (before Kampala Convention, 2009) related to IDPs premised on the notion that IDPs need not and cannot be granted a special legal status comparable to refugee status. This notion laid to develop international legal standards on need based approach and restricted the emergence of hard laws to ensure IDPs basic rights. This period can be witnessed with the evolution of doctrine of Sovereignty as responsibility that influenced the formation of the UN Guiding Principles to a certain extent. These aspects are elaborated in the beginning of the chapter. Recent years, numbers of IDPs increased compared to refugees and the increasing complexity of IDPs problems questions the earlier notion limited to need based approach. The chapter also highlights modest progress to develop rights based approach to address the needs of IDPs in international law. 1. OVERVIEW OF THE STEPS IN RESEARCH Rights of Internally Displaced Persons Research Question/Hypothesis: Is there any shift/progress to delineate the legal status of internally displaced persons?

3 Research Design: Examining the available international and national instruments related with internally displaced persons Documents: UN Documents/Annotations of the Guiding Principles Rights of Internally Displaced Persons Earlier phase of international laws (before Kampala Convention, 2009) related to IDPs premised on the notion that IDPs need not and cannot be granted a special legal status comparable to refugee status. This notion laid to develop international legal standards on need based approach and restricted the emergence of hard laws to ensure IDPs basic rights. This period can be witnessed with the evolution of doctrine of Sovereignty as responsibility that influenced the formation of the UN Guiding Principles to a certain extent. These aspects are elaborated in the beginning of the chapter. Recent years, numbers of IDPs increased compared to refugees and the increasing complexity of IDPs problems questions the earlier notion limited to need based approach. The chapter also highlights modest progress to develop rights based approach to address the needs of IDPs in international law. Who are Internally Displaced Person? It can be a person or group of persons where there is involuntary movement of people and such movement takes place within national borders. We shall start by attempting to understand categories of internally displaced people. Broadly, internally displaced persons can be categoriesd: Conflict-induced displacement, disasters-induced displacement and development-induced displacement. Conflict-induced displacement can be understood where the displacement of the Kashmiri Pandits which is unprecedented in the history of India virtually the entire community had been forced into exile due to violent militancy. Many internally displaced persons live in situations of internal tensions or disturbance, or disasters. The terms internal tensions and disturbances refer to situations which fall shorts of armed conflict, but involves the use of force and other repressive measures by government agents to maintain or restore public order. Examples of tensions and disturbances include riots, such as demonstration without a concerted plan from the outset, isolated sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups; and violent ethnic conflicts not amounting to hostilities. A situation of serious internal tension characteristically

4 involves specific types of human rights violations such as large-scale arrests and other large-scale measures restricting personal freedom, administrative detention and assigned residence, large numbers of political freedoms and the existence of ill-treatment or inhuman conditions of detentions. Disasters have natural or human-made origin. Example includes droughts, floods, earthquakes or typhoons, nuclear disasters or famine. Human-made origin disaster can be for instances, creation of big dams led to forced removal from one s home and home area and relocation to another area of the country that witnessed a grave and controversial pattern of development process and has led tensions. In Indian discourse, there are four broad categories of displacement: Political causes, including secessionist movements (north east India internal conflict); Identity based autonomy movements (recent attack on Biharis in Mumbai and Karnataka); localized violence; environmental and developmentinduced displacement (development projects, natural disaster-induced displacement). At the end of 2011, there were an estimated 26.4 million internally displaced people around the world. (UNHCR Report, 2011) The UN Guiding Principles on Internal Displacement 1998 (here-in-after the UN Guiding Principles) has been developed to enhance protection and assistance for forcibly displaced within their own countries by violent conflicts, gross violation of human rights and natural and human-made disasters. Over the years, the Guiding Principles are being used to develop certain operational mechanism to ensure the protection of internally displaced people. A National Responsibility Framework for Situations of Internal Displacement have also been developed to help government to address the problem of internal displacement in their countries in all aspects. In the ten years since the adoption of the UN Guiding Principles, in 1998, the Great Lake Protocol (2006) on the Protection and Assistance of Internally displace persons became the first regional instrument to confer IDPs with legal status. This trend has been strengthened in 2009, by the adoption of the Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa (here-in-after Kampala Convention) which transform the UN Guiding Principles on IDPs. In brief, the term IDP has in and of itself been largely descriptive, and in some regions or states has only recently been conferred few specific legal rights. The UN Guiding Principles on Internal Displacement: Background: Sovereignty as Responsibility The formation of the international UN Guiding Principles on Internally Displaced Person (IDPs) 1 is one of the outcomes of the evolution of the ideal of law of humanitarian assistance, which has been present in international relations and its normative system for a long time. This ideal is embodied in a range of international instruments which pertain to international human rights law, international humanitarian laws and international refugee laws. These 1 Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2.

5 include the Universal Declaration of Human Rights 1948, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, 1966 Convention for the Elimination of Racial Discrimination, four Geneva Convention of 1949 and the two Additional Protocols of 1977, and the 1951 Convention Relating to the Status of Refugee and the 1967 Protocol. The above mentioned series of international instruments on humanitarian assistance became a source and pillars of the Principles. In 1992, the United Nations Commission on Human Rights called upon the Secretary- General to appoint a representative on the issue of internally displaced persons and asked to examine standard of the existing international human rights, humanitarian law and refugee law and their applicability to the protection of and relief assistance to IDPs. Francis M. Dang (Sudan), a Representative of UN Secretary General with help of international legal experts (Robert Kogod Goldman (US), Walter Kalin (Switzerland) and Manfred Nowak, (Austria) presented a preliminary study in 1993 followed in 1996 and 1998 by a two part Compilation and Analysis of Legal Norms related to IDPs. The compilation found that existing law covered many aspects of particular relevance to IDPs but that there remained areas in which the law failed to provide sufficient protection for them. 2 These studies and the discussion that followed, paved the way for the preparation of the UN Guiding Principles on IDPs, which was eventually adopted in Deng conception of principle Sovereignty as Responsibility has become one of the centre/ pillar of the UN Guiding Principles. The International Law Association (ILA) set up a 'Committee on Internally Displaced Persons' in 1992" and undertook studies parallel, unfortunately with little mutual cooperation with the work of the UN Special Representative. At the Taipeh Conference in 1998, the ILA adopted a 'Draft Declaration of Principles of International Law on Internally Displaced Persons', which is expected to be finally adopted at the London Conference in Unlike an earlier version of 1996, the new definition omits the root cause of natural or man-made disasters. According to Article 1 paragraph 1 of the Draft Declaration internally displaced persons are, persons or groups of persons who have been forced to flee or leave their homes or places of habitual residence as a result of armed conflicts, internal strife, systematic violations of human rights, and who have not crossed an internationally recognized State border. The UN Guiding Principles on IDPs consists of 30 principles which are comprehensive in scope and apply to all phases of displacement viz, protection from displacement, protection during displacement and protection after displacement. The Guiding Principles on IDPs consists five sections which underline significant mechanisms/measures for protection of internally displaced person. The Guiding Principles stand soft law as a legally non-binding obligation upon states and are meant to guide the application of protections for 2 UN Doc. E/CN.4/1996/52/Add.2 (1996) and UN Doc. E/CN.4/1998/53/Add.1 (1998).

6 IDPs within national laws as well as encourage the adoption of international norms of protection for IDPs. Legal Status of IDPs From a legal perspective, is there necessity to create a new legal status for the internally displaced? Views of scholars are divided on this issue. Some scholars argues that internally displaced persons are, as individuals, already entitled to the whole range of international human rights and humanitarian law instruments. One important argument relates to the possible discrimination which may result for other human rights victims in operational terms, which is particularly stressed by the International Committee of the Red Cross (ICRC). UNHCR points out that the institution of asylum could be undermined if the concept of 'incountry protection' were over-emphasized. 3 However, the challenges of negotiating an international treaty and the association of IDP protection with domestic regimes were also equally undeniable practical reasons which led to create a soft law. In recent years, the widespread lack of respect for the rule of law which leads to a considerable factual lack of protection of internally displaced persons have jeopardized the remedial effect of UN Guiding Principles in general, acknowledge the fact to consider the legal status of IDPs. The number of IDPs increased more than refugees. The Kampala Convention has been brought to achieve to provide more meaningful protection to IDPs which led to create a legal status of IDPs. The Guiding Principles begins with an Introduction: Scope and Purpose. Para 2 of Introduction identifies category of persons whose needs are the concern of the Principles. It highlights two elements: (1) the coercive or otherwise involuntary character of movement; and (2) the fact that such movement takes place within national borders. At present, however, there does not exist any universal or uniform definition of the internally displaced persons. Para 2 of the Principles says For the purpose of these Principles, internally displaced persons are persons or group 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. It is important to underline that Para 2 is not a legal definition of internally displaced persons. The formative period of the UN Guiding Principles (report of experts and at the time of adoption of UN Guiding Principles), referred that becoming displaced within one s own country of origin or country of habitual residence does not confer special legal status in the same sense as, say, becoming a refugee does. Internally displaced persons need not and cannot be granted a special legal status comparable to refugee status. In International Law, refugees are granted a special status because they have lost the protection of 3 Nils Geissler, The International Protection of Internally Displaced Persons, IJRL, (1999), p. 451.

7 their own country and therefore, are in need of international protection not necessary for those who do not cross international borders. Internally displaced persons do not need such as substitute protection. This core understanding prevailed at the time of the adoption of Para 2 of UN Guiding Principles has been now overruled by the enforcement of Great Lakes Protocol and the Kampala Convention which confer IDPs with legal status. The reading of Article 7(4) of the Kampala Convention underlines that members of armed groups shall be held criminally responsible for their acts which violate the rights of internally displaced persons under international and national law. After setting out the Scope and Purpose, the Guiding Principles outlined the general obligations (Article 1-4). These general obligations are the backdrop for more detailed procedural and substantive obligations on the protection before displacement (Articles 5-9); protection and assistance during displacement (Articles 10-23); principles relating to humanitarian assistance (Article 24-27); protection after displacement (Article 28-30). The UN Guiding Principles are comprehensive in scope and nature to apply in all three phases of displacement and significantly helping in creation of national policy to ensure rights of IDPs. Basic Rights of IDPs in the UN Guiding Principles Principles 1 to 4 of the Guiding Principles dealt with the General Principles. The Guiding Principle 1 embodies the principles of equality and non-discrimination and make explicit that the IDPs are entitled to enjoy the same rights and freedoms enjoyed by other person in their country. Any discrimination against internally displaced persons because of their displacement is prohibited. Para 2 of the Guiding Principle 1 also cautions that the Guiding Principles do not affect the operation of rules of international criminal responsibility. The purport of this para is that persons suspected of having committed serious offences such as genocide, crimes against humanity and war crimes cannot avoid prosecution and punishment under international law by simply invoking the Guiding Principles. Principle 2 requires observance of these principles by all authorities, groups and persons irrespective of their legal status and emphasizes their impartial and neutral nature. The Guiding Principles constitute a minimum standard and that more favourable provisions of human rights law, humanitarian law or domestic law shall not be restricted, modified or impaired by their application. Thus, the Guiding Principles can never provide any valid arguments for limiting rights and guarantees going beyond them. The General Principles of the UN Guiding Principles also affirms that the Guiding Principles should not be invoked to restrict or curtail the right to seek and enjoy asylum in other countries. Principle 3 of the UN Guiding Principles reflects the generally recognized principle of non-intervention which as contained, inter alia, in Article 2(7) UN Charter, prohibits intervention in matters that are essentially within the domestic jurisdiction of any state. There are general principles guaranteed under Principle 3 to prohibit persecution or punishment of internally displaced persons who request protection and humanitarian assistance, and specifies

8 further the responsibility of sovereign states to protect and assist their displaced persons. Whereas Principle 1 refers to discrimination against internally displaced persons as compared with the rest of the population, Principle 4 prohibits discrimination among the displaced themselves on the basis of race, sex, language, religion and the other criteria enumerated above. The principle also sets out the general rule, several other principles address specific aspects of the special attention that should be paid to vulnerable groups. The Guiding Principles relating to protection from displacement The Guiding Principles 5 to 9 guarantees protection from displacement. Principle 5 emphasizes the importance of compliance with international law for the prevention of internal displacement. Principle 6 is considered one of the most important provisions in the Guiding Principles. It expressly recognizes a right not to be arbitrarily displaced. In India, creation of large dams, mega cities, express highways etc. displaced large number of people and brought intense rift in the region. Indian courts are reexamining the various projects launched by the State authorities on the ground of public interest thereby prohibiting the violation of right not to be arbitrarily displaced. This right is inferred from various human rights guarantees, including freedom of movement and residence, and humanitarian law provisions dealing with the forced displacement of civilians during armed conflict. Paragraph 2 of Principle 6 sets forth categories of prohibited displacement, including displacement occasioned by armed conflict. This principle reflects several provisions of the Fourth Geneva Convention of 1949 (IHL) and the Additional Protocols. To strengthen the protection mechanisms in this phase of displacement, Principle 6(2)(c) prohibits displacement in cases of large-scale development projects, that are not justified by compelling and overriding public interests. Furthermore, Principle 6(3) stipulates that displacement shall last no longer than required by the circumstances. Principle 8 prohibits displacement that is carried out in a manner that violates the right to life, dignity, liberty and security of those affected. Moreover, Principle 9 obliges states to protect indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands from displacement. Principle 7 outlines that the responsible authorities have to explore all feasible alternatives before taking any decision requiring the forced displacement of persons. Furthermore, if no alternatives to displacement exist, the authorities are expected to minimize the scope and adverse effects of the resettlement. The Guiding Principles relating to protection during displacement and international humanitarian response system Principles 10 to 23 set out principles relating to protection during displacement. Principle 10 of the UN Guiding Principles recognizes and guarantees inherent and non-derogable right to life for IDPs. The sub paras (a) to (d), sets forth a

9 nonexhaustive list of acts that threaten the right to life and is prohibited. The guarantees to IDPs extend even in situation of armed conflict. UN Guiding Principles guarantee the right of IDPs to dignity and physical, mental and moral integrity (Principle 11), right to liberty and security of persons (Principle 12), right to liberty of movement and freedom to choose his or her residence (Principle 14), right to lever their country and to seek asylum in another country (Principle 15), right to know the fate and whereabouts of missing relatives (Principle 16), right to respect of his or her family life (Principle 17); right to an adequate standard of living (Principle 18), right to recognition before the law (Principle 20), right not to arbitrarily deprived of property (Principle 21); right to education (Principle 23). Principles of the UN Guiding Principles relates with humanitarian assistance. Various significant proposals were put forward on how to improve coordination and delivery of assistance to IDPs. Over the years the increased efforts of creation of institutional measures to respond to situation of internal displacement viz., Emergency Relief Coordinator (ERC) in 1991, Inter-Agency Standing Committee (IASC) in 1992, the Executive Committee on Humanitarian Affairs (ECHA) in 1997 were culminated into establishment of Office for the Coordination of Humanitarian Affairs (OHCA). The Tsunami disaster (2004) and Darfur crisis (2003) compelled the international community to evaluate the available humanitarian response system, which resulted in the establishment of Humanitarian Response Review (HRR). According to the HRR there is absence of clear operational accountability and leadership in key sectors. Besides the HRR observation, Kofi Annan, UN Secretary General s Report In Larger Freedom (2005) recognized the many lacunas in the humanitarian response system and called for the assistance and needs of IDPs. The functioning of present HRR is as follows: The Secretary General designates the ERC as the focal point for the inter-agency coordination of humanitarian assistance to IDPs. It also chairs the IASC and ensures that appropriate arrangements are setup to provide protection and assistance in specific situation of internal mobilization, promotion of the establishment of database and support to the field on related humanitarian issues. At the field level, the UN consultation with the inter-agency Country Team, are responsible for the strategic coordination of assistance to IDPs. Through a network of IDP focal points in IASC member agencies, the ERC s Office for the Coordination of Humanitarian Affairs (OCHA) maintains a system-wide liaison concerning situations of internal displacement. It enables OCHA to assist the ERC and IASC with its Working Group in developing an inter-agency consensus in matters relating to IDPs. Besides these agencies, the United Nations Development Programme (UNDP), the United Nations High Commissioner for Refugees (UNHCR), the United Nations Children Fund (UNICEF), the World Food Programme (WFP), the Food and Agriculture Organization (FAO), the World Health Organization (WHO), the International Committee of the Red Cross (ICRC), the International Federation of the Red Cross and Red Crescent Societies (The Federation), the International Organization of Migration (IOM) and other Non-governmental agencies are also involved in a wide range of protection activities for IDPs.

10 The Guiding Principles relating to protection after displacement Principles of the UN Guiding Principles provide durable solutions to IDPs and ensure measures related to return, resettlement and reintegration. The available durable solutions can be well understood when one considers the background of recent resolutions of the UN Security Council and international agreements. Also, recent State practice shows various examples of bi- or multilateral agreements and resolutions of the Security Council which have included a right to return for internally displaced persons. 4 Thus, a constantly developing opinio iuris (psychological element) seems to affirm the existence of a right to return for internally displaced persons. For instances, UN Security Council Resolution 876 of 19 October 1993 on the situation of Abkhazia affirmed the right of refugees and displaced persons to return to their homes. In similar vein, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, (The United Nations Sub- Commission on the Promotion and Protection of Human Rights, the main subsidiary body of the former Commission on Human Rights, was established in 1947 with 12 members. Originally the 'Sub Commission on Prevention of Discrimination and Protection of Minorities', it was renamed in 1999) affirmed the right of refugees and displaced persons to return, in safety and dignity, to their country of origin and/or within it, to their place of origin or choice. Annexure 7 of the Dayton Peace Agreement for Bosnia and Herzegovina (DPA) of 14 December 1995 explicitly provides for the right of more than 2 million refugees and internally displaced persons to freely return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina (Article I(1) of Annex 7). The DPA was endorsed by UN Security Council Resolution 1031 of 15 December Voluntary return of internally displaced persons is preferable solution in addressing the needs of IDPs. Full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration is not only important in ensuring that such movements are voluntary, but also will greatly facilitate return or resettlement. A National Responsibility Framework for Situations of Internal Displacement As IDPs remain within the borders of their own countries, primary responsibility for protecting and assisting them rests with their national authorities. A Framework for Situation of Internal Displacement was developed by the 4 The General Framework Agreement for Peace in Bosnia and Herzegovina: 35 ILIM 136, Annex 7, Art. 1(1); Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons of 4 April 1994 concerning Abkhasia/Georgia: UN doc. S/1994/397 (1994), para. 3.

11 Brookings Institution University of Bern in It identifies twelve key steps for governments to take in responding to internal displacement, in particular to: - Prevent Displacement and Minimize its Adverse Effects - Raise National Awareness of the Problem - Collect Data on the Number and Conditions of IDPs - Support Training on the Rights of IDPs - Create a Legal Framework Upholding the Rights of IDPs - Develop a National Policy on Internal Displacement - Designate an Institutional Focal Points on IDPs - Encourage National Human Rights Institutions to Address Internal Displacement - Ensure the Participation of IDPs in Decision-Making - Support Durable Solutions - Allocate Adequate Resources to the Problem - Cooperate with the International Community when National Capacity is Insufficient Kampala Convention, 2009: Whilst the international humanitarian response to the problem of forced displacement is undergoing a reform, there have been remarkable regional developments with far-reaching implications for the protection of IDPs. 5 Importantly, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa is the first ever treaty binding legal instrument dealing with IDPs covers all causes and stages of internal displacement. In addition to regional efforts, law and policies on IDPs have also been adopted in various states viz., Angola, Burundi, Liberia, Sierra Leone and Uganda. Briefly, first, conceptual shift underpinning numerous developments including that of the articulation of the Guiding Principles, doctrines of independence and non-interference have slowly given way to those of sovereign responsibility as foundational postulates for Africa s new regional framework. Second, similar to the Guiding Principles, the Kampala Convention effectively articulates responsibility for protection within three phases: Obligations of State Parties relating to Protection from Internal Displacement, to Protection and Assistance During Internal Displacement, and to Sustainable Return, Local Integration or Relocation. Thus, modest progress to develop rights based approach to the rights of IDPs at the international and national level are emerging where the normative and institutional dimensions of the protection and assistance to IDPs have increasingly been refined. 5 Allenhone Mulugeta Abebe, Legal and Institutional Dimensions of Protecting and Assisting Internally Displaced Persons in Africa, Journal of Refugee Studies (2009).