Protection of Refugees and Internally Displaced Persons (IDPs)

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1 Protection of Refugees and Internally Displaced Persons (IDPs) Presented by Rhodri C. Williams, Independent Consultant and Author of TerraNullius weblog: ATHA Core Training, October 18, Rhodri C. Williams Overview o Overview of relevant legal frameworks o International refugee law o Response to internal displacement o Guiding Principles on Internal Displacement 1

2 Legal framework for displaced o Focus on state protection n International protection for refugees n National protection for internally displaced o Humanitarian & human rights approaches n Common needs/vulnerability n Issue of state responsibility o Sovereignty as responsibility Traditional international law o International law as defining relationship between sovereign states only; no role for individuals. o Relationship between states and their own citizens a purely domestic matter o But - no state has any responsibility to individuals from another state o Any grant of protection from another state is therefore purely discretionary (traditional asylum) o Relatively small numbers until 20th century 2

3 Precursors to Refugee Law o Interwar period in Europe n League of Nations ad hoc responses o Post WW II refugee crisis in Europe n Cold War tensions and UN role 1950 UNHCR Statute o Focus on international protection : seeking permanent solutions for the problem of refugees by assisting governments to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities. 3

4 1951 Refugee Convention o Universal definition of refugee based on individual persecution o Rules on status and rights of refugees o Rules on cessation and exclusion o Baseline protection of non-refoulement 1951 Refugee Convention Refugee definition: n Outside country of origin n Well-founded fear of persecution based on o Race o Religion o Nationality o Membership of a particular social group o Political opinion n Unable or unwilling to avail self of protection of that country or return due to fear of persecution 4

5 1951 Refugee Convention o Non-refoulement o Exclusion o Cessation o Refugee bill of rights Beyond the 1951 Convention o Generalized violence and prima facie refugees: n 1969 OAU Refugee Convention, Article 1: The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave n 1984 OAS Cartagena Declaration o Temporary protection o Humanitarian grounds for granting asylum 5

6 Refugee policies o Multi-track system during Cold War n Formal status determination in West n Protracted camp situations in developing world n Resettlement as a limited bridge between the two Key issues - assistance to refugees o Issues in principle n Legal regime not universally accepted n Discretion and inconsistent application o Issues in practice n Protracted refugee situations n Urban refugees n New causes - climate and non-state actors 6

7 Origins of the IDP crisis o Post-Cold War trends n Increased internal conflict and displacement n Asylum restrictions: prevention and repatriation o International response n Institutional: o 1992 Creation of RSG position with advisory role o Lack of centralized UN operational coordination n Normative o 1998 Guiding Principles on Internal Displacement Definition of IDPs o Guiding Principles, Introduction, para. 2: 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. 7

8 Definition of IDPs o Compare to the standard refugee definition: A refugee is any person who owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country;. Definition of IDP - Core Elements o Internal : within national borders n Distinction from refugees n Questions: IDPs sur place? Repatriated IDPs? o Displacement : involuntary movement n Distinction from economic migrants n Direct or indirect coercion ( forced or obliged ) n Test: possible to return? 8

9 Responsibility for protecting IDPs o Sovereignty as Responsibility, Guiding Principle 2.1: National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to [IDPs] within their jurisdiction. Responsibility: Why focus on national authorities? o IDPs remain within their country of citizen or habitual residence (unlike refugees). o Therefore, they are entitled to exercise their rights on the same basis as the non-displaced population (cf: international protection). o Displacement creates vulnerabilities and risks not shared by non-displaced o Special measures needed to address effects of displacement - for IDPs generally and particularly vulnerable sub-groups o Failure to take such measures discriminatory 9

10 Responsibility: Who else is responsible? o Non-state humanitarian actors? o Other non-state actors? o For both protection and assistance? Responsibility: Legal foundation of GPs? o The GPs are not a treaty and do not create any new international law responsibilities o The GPs are a compilation of existing rules and clarification of how they apply to IDPs: o Introduction, para. 3: These Principles reflect and are consistent with international human rights law and international humanitarian law 10

11 Responsibility: International acceptance of GPs o 2005 UN World Summit Outcome Document, para. 132: We recognize the Guiding Principles on Internal Displacement as an important international framework for the protection of [IDPs] and resolve to take effective measures to increase the protection of [IDPs]. The Legal Framework o The Guiding Principles on Internal Displacement n Introduction: scope and purpose n Part I: general principles n Part II: protection from displacement n Part III: protection during displacement n Part IV: humanitarian assistance n Part V: return, resettlement and reintegration 11

12 Addressing vulnerability o Issues related to vulnerable sub-groups in refugee situations? o Issues related to vulnerable sub-groups in IDP settings? o Mechanisms for addressing these issues? Key Issues - assistance to IDPs o Role of national authorities o Hidden IDPs - urban and dispersed rural settings o Protracted internal displacement o Durable solutions - lack of a clear endpoint o Property issues 12

13 Property issues o Three generations of restitution 1. Means of promoting return 2. Separate right allowing for free choice of durable solutions n Restitution preferred over compensation n Based on Bosnia practice n Reflected in GPs and Pinheiro Principles 3. Flexible approach n Restitution not automatically favored Trends o Numbers steady over last five years but recent rise o Initial focus on conflict IDPs through tsunami o New focus on rights-based approach to disaster IDPs o Current frontier issue - developmentinduced displacement 13

14 Thank you! o Questions? The Legal Framework o GPs Introduction n Para. 1: purpose o address needs/identify rights n Para. 2: definition o Descriptive nature highlighted by inclusion in introduction not operational parts n Para. 3: legal basis and to whom addressed o Consistent with int l. law o Addressed to RSG, states, all other actors n Para. 4: dissemination 14

15 The Legal Framework o Part I: General principles n GP 1: No discrimination on basis of displacement n GP 2: Binding on non-state actors n GP 3: National responsibility n GP 4: Non-discrimination o 4.1: No discrimination in applying GPs o 4.2: Special measures for vulnerable IDP groups The Legal Framework o Part II: Protection from displacement n GP 5: Respect for IL as prevention n GP 6: Prohibition of arbitrary displacement o Arbitrary = contrary to IL, examples given o 6.3: Non-arbitrary becomes arbitrary if prolonged n GP 7: Conditions of displacement o General conditions: necessity (7.1), aid (7.2) o 7.3: Specific conditions for development projects n GP 8: No lethal or degrading displacement n GP 9: Avoid displacement of vulnerable 15

16 The Legal Framework o Part III: Protection during displacement n GP 10: Right to life o Human rights and humanitarian law n GP 11: Right to physical and mental integrity o Gender-based violence included n GP 12: Liberty and security of person o Confinement in camps and discriminatory arrest n GP 13: Recruitment o No child recruitment and no discrimination The Legal Framework n GPs 14 and 15: Freedom of movement and choice of residence o Right to leave and enter camps/settlements o Right to seek safety elsewhere in country o Right to leave country (and seek asylum) o Internal non-refoulement n GPs 16 and 17: Family life o Information, remains and grave sites of missing o Family unity and reunification o International assistance in tracing 16

17 The Legal Framework n GP 18: Adequate standard of living o Core economic/social right o Read together with GP 3.2 and Section IV, argument for right to humanitarian assistance o At the minimum, regardless of the circumstances shall provide o Essential food, water, sanitation, shelter, clothing and medical care (key humanitarian sectors) o 18.3: Women s participation in distribution The Legal Framework n GP 19: Medical care o Non-essential care: shall receive to the fullest extent practicable o Psycho-social treatment o Health needs of women o Prevention of contagious/infectious disease (AIDS) n GP 20: Right to recognition as a person o Documentation necessary to enjoy human rights o Women s equal rights to documentation 17

18 The Legal Framework n GP 21: Property and possessions o Human rights and humanitarian standards o Positive obligation re: non-state actors n GP 22: Non-discriminatory participation o Thought, conscience, opinion, expression (right to information) o Employment and economic activities o Association and community participation o Political participation (active and passive) o Language The Legal Framework n GP 23: Education o Free and compulsory primary education o Respect for cultural identity, language and religion o Equal participation of women and girls o Education and training facilities made available as soon as conditions permit 18

19 The Legal Framework o Part IV: Humanitarian Assistance n GP 24: Humanity and impartiality n GP 25: Primary duty of national authorities o Offers of assistance by non-state humanitarian actors shall be considered in good faith and shall not be arbitrarily refused, especially where state authorities cannot or will not provide aid o Free passage and access n GP 26: No attacks on humanitarian aid (diversion?) n GP 27: Due regard to protection needs and human rights (without prejudice to protection mandates) The Legal Framework o Part V: Reintegration n GP 28: Durable solutions o State duty to establish conditions/provide means o Free choice between return and resettlement o Duty to facilitate reintegration either way o Participation of IDPs in planning durable solutions n GP 29: Conditions for durable solutions o Non-discrimination, public participation, access to services o Property restitution and compensation n GP 30: Humanitarian access to assist reintegration 19