CHAPTER 3: INTERNATIONAL RESPONSES TO INTERNAL DISPLACEMENT

CHAPTER 3: INTERNATIONAL RESPONSES TO INTERNAL DISPLACEMENT
CHAPTER 3: INTERNATIONAL RESPONSES TO INTERNAL DISPLACEMENT
Even though the primary responsibility for the security and well being of internally displaced
persons lies with their governments, when governments are unwilling or unable to provide
protection and assistance to their citizens, or when there is no government at all, the
international community is challenged to become involved.352
3.1 Introduction
This study is aimed at realizing the level of comprehensiveness in existing protection
mechanisms for internally displaced persons within the Great Lakes region. To achieve this it
is imperative in this chapter to ascertain whether existing international law mechanisms
provide adequate provision, coordination and subsequently, adequate protection, legally and
institutionally for the internally displaced. Governments are first and foremost responsible
for protecting their own, but sometimes it is these very governments that are responsible for
displacing or tolerating the displacement of their citizens or are unwilling or unable to
guarantee their basic rights.353 Such conditions have created a vacuum within internal
displacement protection initiatives hence the need for international cooperation. Yet the UN
and the international community‘s approach to the protection of internally displaced persons
is still mainly ad hoc and initiated by personalities and individual convictions as opposed to
institutional, system wide agenda. There is also inadequate, often un-collaborated political
and financial support from UN headquarters and member states.354
Internally displaced persons are entitled to enjoy equally, and without discrimination, the
same rights and freedoms under international and national law, as any other members of a
352
UN Secretary Kofi Annan in Cohen R ‗Some reflections on national and international responsibility
in situations of internal displacement in Mishra O Forced Migration in the Southern Asian Region:
Displacement, Human Rights and Conflict Resolution, Spring 2004 at 34; This is also the basis of the
emerging international norm of Responsibility to Protect (R2P) which was first articulated by the
International Commission on Intervention and State Sovereignty (ICISS) appointed by the government
of Canada to further calls by the then United Nations General Secretary Kofi Annan.
353
Deng and Cohen 1998 as above at 74.
354
Bagshaw and Paul 2004 as above at 3.
80
particular country. Internally displaced persons do not relinquish their rights by virtue of
being displaced. They can invoke these rights through existing human rights, humanitarian
law as well as refugee law by analogy.355These systems of international law in combination
reflect local and international responsibility for the protection and assistance of internally
displaced persons. Such responsibility has always existed within rules of international law,
even though in a somewhat un-coordinated manner.356This lack of coordination was
problematic because international law for a long time did not contain explicit provisions for
the exclusive protection of the rights of the internally displaced.357
3.2 emergence of international responsibility
After World War II the nature of conflicts ceased to be external and amongst states, and
became internal, as various ethnic and religious sectors within countries struggled to seize
power and self determine. At the same time, this was the era when most African states were
gaining independence from their colonial masters. This newly found independence coupled
with the fact that large superpowers such as the Former Soviet Union and the United States
used developing countries as pawns during the cold war, led to an unprecedented internal
turmoil.358It has been stated that since the superpowers could no longer control the
developing countries directly, the process had to be indirect though inciting internal wars and
rivalry. This necessitated the economic independence of these states to remain held ransom
by their former masters, or unknown third parties, who in turn benefited from the lack of
peace, security and stability.359
As a result of these internal disturbances, the number of internal refugees began to rise.
Between the late eighties and early nineties, the number of internally displaced persons
worldwide exceeded that of refugees who happened to be well provided for by the
international community. In the 1990s the gap in addressing the plight of internally displaced
355
Deng and Cohen 1998 as above at 74.
As citizens or habitual residents of a particular country, IDPs are entitled to full and equal
protection under the State‘s national law, which should be compatible with the rules of international
law. The challenge faced by the international community before the existence of a legal framework for
IDPs was to identify the rights and guarantees scattered in the international law system that
corresponded with the particular needs and protection risks that arose during internal displacement;
IASC Handbook for the protection of IDPs 2010 as above at 30.
357
Deng and Cohen 1998 as above at 74.
358
Alao A ‗The role of regional and sub-regional organizations in conflict prevention and resolution‘
New Issues in Refugee Research Working Paper No. 23 July 2000 at 5.
359
Alao as above.
356
81
persons began receiving attention.360 There are many reasons advanced concerning the surge
in the attention provided by the international community towards internally displaced
persons. The first reason was the one advanced above that the number of internally displaced
persons had swelled dramatically. There is also the fact that the process of accessing
internally displaced populations became much easier after the end of the cold war, when
countries and the atrocities they committed were no longer shelved under the umbrella of one
superpower or the other. Internationally, there was eventually less tolerance over events
taking place within state borders and excuses such as strict sovereignty were slowly being
discarded.361
International human rights movements that had all along condemned the issue of ignoring
states‘ internal affairs at the expense of obvious violations of human rights began to grow
stronger. This was followed by the signing of vast human rights documents and declarations
by states holding relevant states accountable for the violations of people‘s rights. This went
to prove that indeed rights transcended borders.362 Humanitarian organizations providing
relief to populations, especially those stuck behind borders became stronger as well,
especially after being backed by the international community. Humanitarian relief in times of
conflict or disasters became internationally recognized, and seized being subjected to
frontiers. Governments that denied their citizens this right were deliberately subjecting them
to abuse,363 which could in turn be as a basis for international reaction.364
Under this auspice, the responsibility to protect (R2P) and policies such as sovereignty as
responsibility were born.365 The intention was to reconcile the concept of sovereignty and
international intervention by re-conceptualizing the notion of sovereignty from control to
responsibility.366 The concept stipulates that states, on the basis of their sovereignty have a
360
Cohen 2004 as above at 2.
Cohen 2004 as above.
362
Cohen 2004 as above.
363
The reaction could be in the form of forceful military intervention, or soft intervention
364
See Security Council Resolutions for Somalia, Rwanda, Bosnia-Herzegovina and Azerbaijan.
365
When the first Human Rights RSG (Representative of the Secretary General) for the internally
displaced was appointed, the framework he established was based on this philosophy, this was the
guidance followed in adopting a framework for assisting and protecting internally displaced persons.
366
International Refugee Rights Initiative (IRRI) ‗Some reflections on the legal and political
mechanisms bolstering the responsibility to protect: the African Union and the Great lakes, Eastern,
Southern and Horn of Africa sub-regional arrangements‘, 21st October 2008, at 21, at
http://www.refugeerights.org/Focus%20on%20Africa/Great%20Lakes/PDFs/R2P%20RECs%20Discussion%20paper.102
1008.pdf accessed on 13-05-2012.
361
82
fundamental responsibility to provide life supporting protection as well as assistance to their
citizens from avoidable catastrophes. Where they are unable or unwilling to do so, they are
expected to request or accept external aid. Refusal or deliberate obstruction of such
endeavors and any consequent mass risk of lives, provides the international community with
a right and correlating responsibility to assert its concern in whatever form it deems fit.367
Responsibility to protect (R2P) expresses a commitment to protect starting with prevention,
which entails among other things, addressing any underlying and direct causes of internal
conflict and human made disasters. R2P is a continuous responsibility which runs through
reaction and response to conflict and addressing crisis with the requisite measures.
Depending on the circumstances, reaction and response may include, sanctions, international
prosecution, and in extreme cases military intervention whether by consent from the
concerned state or otherwise.368The last responsibility lies in re-building and assisting with
post conflict or post crisis reconstruction and reconciliation by the wider community of states
where the concerned state is unable, unwilling or has made such request.
Through this, a framework that has synthesized international refugee law by analogy,
international humanitarian law, international human rights law and international criminal law
has been adopted to provide for the internally displaced. In as much as a ‗melting pot‘ of
provisions could be found in these instruments, too often it was difficult to determine which
guarantees applied in specific situations. A set of rules that were authoritative, whilst
addressing gaps in the already existing international system became imperative. The Guiding
Principles on Internal Displacement purport to bring together in one document all the
relevant international law rules which are necessary for protection in situations of internal
displacement. They do not only put them together, but also expand and make them more
explicitly applicable.369 They set out the rights of IDPs and correlative responsibilities of
states and other authorities towards them. The Guiding Principles cover protection from
displacement, protection during displacement and also highlight on principles of
367
Cohen 2004 as above at 2.
International Refugee Rights Initiative (IRRI) 2008 as above at 1.
369
Training on the protection of IDPs ‗Guiding principles: legal origins and international obligations‘
at http://www.internaldisplacement.org/8025708F004BE3B1/(httpInfoFiles)/D98A13C023DC877DC12571150046DEC3/$fi
le/GP%20module%20handout%20legal%20origins.pdf accessed on 30 March 2012.
368
83
humanitarian assistance, as well as matters relating to return, resettlement and
reintegration.370
3.3 International Legal framework
3.3.1 Guiding Principles on Internal Displacement 371
After the events that were outlined above, it became apparent that more serious steps had to
be taken towards the protection of internally displaced persons. There were a couple of
approaches suggested. The first one was creation of an independent regime to provide for
internally displaced persons. The only problem with this approach was that it was very likely
to offend the internationally recognized principle of state sovereignty. It was feared such
approach would attract a lot of disagreement from some of the states, especially those with
un-transparent human rights records. The second approach suggested an extension of the
already existing refugee framework to cover internally displaced persons.
This approach also was problematic because factual circumstances within which the refugee
regime worked did not always cover internally displaced persons, at least not without
rendering the whole exercise redundant. This is because the Refugee Convention and other
instruments that provided for the protection of refugees were meant to protect people who
were forcibly removed or had to forcibly leave their states and seek refuge in other states.
These are people who had in actual effect lost ties, or who had temporary or permanently
severed ties with their states. The international community provided an independent regime
to provide for them whilst in refuge in another state where they could not enjoy the benefits
of citizenship. This is not the case with internally displaced persons, they are usually still
within their own states.
The third approach is what was later endorsed by the international community. It suggested
the creation of a set of Guiding Principles that synthesized relevant international human
rights law, international humanitarian law and refugee law for specific IDP protection whilst
addressing protection gaps within these existing laws.372 These principles are soft law, thus in
370
Guiding Principles on Internal Displacement 1998 as above.
Guiding Principles on Internal Displacement 1998 as above.
372
See Principle 2(2) of the Guiding Principles on Internal Displacement 1998 as above.
371
84
as much as they outline the guidelines for protection against, assistance during and after
displacement, they do not as a matter of principle make any imposition upon states.
Exception to this arises only where states have included the Guiding Principles into their own
domestic laws. This approach was also supplemented by the introduction of the collaborative
and cluster arrangement of institutions that would provide for the protection and assistance to
internally displaced persons, thus facilitating implementation of the principles.
The Guiding Principles, thirty in number cover a wide array of issues that IDPs face. They
apply to three different circumstances, including tensions and general disturbances which are
covered by human rights law; non-international armed conflict, covered by international
humanitarian and human rights law, as well as interstate wars where humanitarian law
applies exclusively.373The principles provide guidance to all actors involved with the
internally displaced including governments, NGOs and international organizations and nonstate actors.374 The guidance provided covers all phases of displacement starting with
prevention from arbitrary displacement, by specifically providing for the right not to be
arbitrarily displaced.375
If respected and implemented by states, this provision is key to future successful and
comprehensive protection for IDPs, for it covers a gap that international human rights law
had failed to specifically provide for.376The principles further provide for protection and
assistance during displacement including the coverage of a full range of civil, political,
economic, social and cultural rights such as protection from human rights abuses, freedom of
movement, access to documentation, education, food and basic supplies, freedom to choose
residence, freedom against forcible return, freedom for women to access health facilities
including reproductive health, and rights for women, children, the disabled, the elderly, and
persons with special attachment to land or any other vulnerable groups.377
373
Cohen R ‗The development of international standards to protect internally displaced persons‘
Human rights and forced displacement (ed.) Bayefsky A and Fitzpatrick J Refugees and human rights
series Vol. 4 2000 at 79.
374
Cohen R ‗The Guiding Principles on internal displacement: an innovation in international standard
setting‘ Global Governance Vol.10 2004 at 465.
375
Principle 6(1) (2) of the Guiding Principles on Internal Displacement 1998 as above.
376
Ngugi L ‗Internally displaced persons: towards an effective international legal protection regime‘
Unpublished LLM thesis 2008 University of Cape Town at 58.
377
Cohen 2000 as above at 80; See Principle 10, 11, 12, 13, 14, 18 and 22, 23 of the Guiding Principles
on Internal Displacement 1998 as above.
85
Lastly the principles provide for protection during return, resettlement and reintegration.378
They clarify IDP rights to return to their homes or places of habitual residences voluntarily in
safety, dignity or if uncomfortable then an alternative to seek safety in another country is
provided.379 This provision is very important because the IDP regime does not have a
specific principle of non-refoulement. This has at times resulted in IDPs being forced to
return to places they are not very comfortable.380The principles also cater for the process of
return by providing for the property rights of returning persons.381The provisions include the
recovery of property and possessions lost as a result of displacement as well as compensation
and reparations in circumstances where recovery has become impossible.382
The principles have been a source of guidance for various international, intergovernmental
organizations and United Nations Agencies. Although the principles were disseminated as
soft law, and hence are not binding in nature, they have been relied on by various aid
organizations and NGOs such as the Norwegian Refugee Council, the International
Commission of Jurists and the Refugee Policy Group. A growing number of national
governments are also incorporating the principles into their national policies and legislation
and other programs for dealing with internally displaced persons.383 They have also been
endorsed by the General Assembly of the United Nations384 and the UN Commission on
Human rights385 as generally acceptable guidance as far as the protection of the internally
displaced is concerned.386 They have further been endorsed by UNHCR, ICRC, UNICEF
WFP and a lot of other UN umbrella organizations.
378
See principle 28, 29 and 30 of the Guiding Principles on Internal Displacement 1998 as above.
Cohen 2000 as above at 81; Principle 28 of the Guiding Principles on Internal Displacement 1998
as above.
380
Principle 15(d) of the Guiding Principles on Internal Displacement 1998 as above; In Kenya and a
few other countries it is questionable whether this principle was ever followed. ‗Operation Rudi
nyumbani‘ (operation return home) which was set up to facilitate the return of IDPs in Kenya left a lot
of doubt about the application of this principle.
381
Cohen 2000 as above at 81.
382
Principle 29 (2) of the Guiding Principles on Internal Displacement 1998 as above.
383
Cohen 2004 as above at 467.
384
GA Res 60/1, 2005 World Summit Outcome Resolution adopted by Heads of State, 15 September
2005 Para 132 at
http://daccessedds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/NO548760.pdf?openElement accessed
on 19 December 2011.
385
UN Office of the High Commissioner for Human Rights (UNOHCHR), Commission on Human
Rights Res 1996/52, 19 April 1996, Para. 9; See also United Nations Commission on Human Rights
Resolution 2003/1 of 23 April 2003; and United Nations General Assembly Resolution 58/177 of 22
December 2003.
386
Cohen 2004 as above at 469; Former UN Secretary General Kofi Annan, supported the principles
and went on to call them one of the ‗notable achievements‘ in the humanitarian area, he later
encouraged states in his report to the Security Council, to observe the principles in situations of mass
379
86
The reason for this widespread acceptance of the principles includes the fact that they were
developed in an all inclusive process of wide consultation with all relevant stakeholders.
Therefore at some point or the other the above mentioned organizations were part of the
consultative process that bore the principles. The other reason is based on a previous urgent
need for a document to direct various organs of state and the international community on
how to deal with internally displaced persons. The Guiding Principles happened to be the
right answer to this urgent need. They represent minimum standards not only for assistance,
but for the protection of internally displaced persons.387 Finally the careful diplomatic
coining and terming of the principles reflected an effort to balance issues of humanitarian
imperatives and sovereignty.388 In doing so the drafters of the principles managed to avoid
sparking controversy around the issue of any purported interference with state sovereignty.389
The Guiding Principles reflect an effort throughout to balance state sovereignty with
humanitarian obligations.
Whilst acknowledging that the primary responsibility for the displaced rests with their
national governments,390 they also provide that aid from the international community and
humanitarian organizations shall not be regarded as an ‗unfriendly act or an interference in a
State‘s internal affairs.‘ Consent for international aid cannot, according to the principles, be
‗arbitrarily withheld‘ especially in circumstances where the relevant authorities seem ‗unable
or unwilling‘ to provide the necessary assistance.391
The same principles further provide that in the process of assisting IDPs, international and
humanitarian organizations should pay attention to their protection needs as well as their
human rights and if possible they should take an extra step to provide such.392 This means
that the idea of international organizations and other actors, just coming in to provide only
‗assistance‘ is being discouraged. Assistance is expected to be comprehensive and integrate
displacements, and further recommended to the General Assembly and the Economic and Social
Council to encourage member states to develop national laws and policies consistent with the Guiding
principles; see Cohen 2004 as above at 478.
387
Principle 27 of the Guiding Principles on Internal Displacement 1998 as above.
388
See principle 3 and 25 of the Guiding Principles on Internal Displacement as above.
389
Cohen 2004 as above at 468.
390
Principle 3 and 25 of the Guiding Principles on Internal Displacement 1998 as above.
391
Cohen 2004 as above at 467; Principle 25(2) of the Guiding Principles on Internal Displacement
1998 as above.
392
Principle 27(1) of the Guiding Principles on Internal Displacement 1998 as above.
87
matters of protection as well. This is a good way of addressing the ‗well-fed dead‘ expression
that seemed to be an outcome of some humanitarian responses. The expression rendered the
process of feeding people without addressing their protection needs very redundant.393
3.3.1.1Reservations
The main reservation the principles faced was in the form of an initial outright disapproval
from their official recognition by intergovernmental organizations, such as the United
Nations.394 The main reason for this disproval resulted from some criticisms raised by states
that deemed the process of endorsement of the principles to have failed to include
intergovernmental processes or negotiations. The principles were enacted independently by a
panel of experts. This was initially okay for most governments considering the fact that the
principles were not binding. When intergovernmental organizations became involved, most
governments, especially those harboring large numbers of refugees and internally displaced
persons became concerned. The basis of this concern was that, if the principles were
officially endorsed, this would lead to their eventual enforcement and probably result in the
dilution of the principle of sovereignty that some states were still holding onto dearly.395
In addition to the above reservations, the principles have faced numerous challenges
including consequences of their non binding nature. However useful the principles seem to
be, the need to reconcile them with state sovereignty left them toothless and hence states,
international organizations or other actors cannot be held liable for violating them. Closely
related to this is the lack of mechanism set up in place to ensure their proper
implementation.396 In fact this concern was first raised by the then RSG of the human rights
of IDPs. He stated that ‗while the Guiding Principles had a relatively good reception, this
was done rhetorically. He pointed out that their implementation remained problematic and
often rudimentary.397This means that for their provisions to be very effective or enforceable,
393
Cohen 2000 as above at 81.
The Commission for Human Rights and the United Nations General Assembly were initially
cautious in receiving the principles, but later they embraced them and went as far as calling them
‗standards‘ and ‗important tools‘.
395
Cohen 2004 as above at 472; India, Egypt and Sudan seemed a lot worried initially about the
recognition of the Principles in UN bodies and their growing usage internationally.
396
Phoung 2004 as above at 66.
397
UN Commission on Human Rights, Report of the Representative of the Secretary General on the
Human Rights of Internally Displaced Persons, Francis M Deng, UN Doc E/CN.4/2002/95, 16 January
2002 para. 98.
394
88
at some point parties will have to rely on the general norms from which such specific IDP
rights were derived.
It has already been established that forced displacement did not initially invoke protection
under international human rights instruments, or humanitarian law. But these instruments
have proven to be useful since they contain general norms relevant to the protection of
internally displaced persons.398 These instruments are the principal sources of existing
standards for protection, and are basic foundations for future protections as well. To fully
understand and most effectively use the Guiding Principles, it is imperative to discuss them
within the broader framework of the international legal norms that constitute them and whose
gaps they are designed to fill.
3.3.2 International Humanitarian Law (civilian protection)399
Humanitarian law is constituted of internationally accepted norms that are responsible for
determining parameters within which warfare can be conducted by parties involved.400 This
set of international law strives to offer protection to non-combatants, ex combatants and
civilians from the effects of war, and to control or limit certain methods of warfare.401The
notion that civilians should be distinguished from combatants, and the fact that the latter
should be protected before and during armed conflict, predates even the establishment of the
ICRC or the Geneva Conventions.402Hugo Grotius in the seventeenth century pioneered
international law conceptions on laws of war, especially the issue of non-combatant
immunity. As Grotius stated ‗rulers and commanders may respect the non-combatant because
there are no practical military reasons why they should not do so, and because there are good
religious and ethical reasons why they should.‘403 This formulation by Grotius, led to a
398
Phoung 2004 as above at 13.
Section III of Guiding Principles on Internal Displacement 1998 as above.
400
Training on the protection of IDPs ‗Guiding principles: legal origins and international obligations‘
as above.
401
Aeschlimann A ‗Protection of IDPs: an ICRC view‘ Forced Migration Review -1-10-2005
International Committee of the Red Cross at 1-4 at
http://www.icrc.org/eng/resources/documents/articles/other/protection-article-011005 visited on 26-082011.
402
Keen D and Lee V ‗Civilian status and the new security agenda‘ in Collinson S, Darcy J, Waddell
N and Schmidt A (eds.) Realizing protection: the uncertain benefits of civilian, refugee and IDP status
Humanitarian Policy Group (HPG) Report 28 September 2009 Overseas Development Institute (ODI)
at 12.
403
Keen and Lee 2009 as above at 12; See Grotius H The law of war and peace (De Iure Belli ac
Pacis1625) reprinted 2004 at 30.
399
89
significant international humanitarian law principle that wars should be fought by just means
and deliberate civilian causalities or displacements should be avoided.404
Failure to observe humanitarian principles, total disregard for applicable norms of
engagement during wars and situations of generalized violence or conflict has resulted in the
rise of a new crisis in international law. This notable crisis which has required humanitarian
attention is the forcible freight of entire populations from their homes within their own states.
Humanitarian law provides for the protection and assistance of vulnerable populations,
including internally displaced persons in times of conflict and civil strife. The two Geneva
Conventions of 1949 and their Additional Protocols of 1977 provide for the protection and
assistance to the lives and dignity of victims of war and internal violence. They also provide
for the prevention of human suffering by promoting and strengthening humanitarian law and
universal humanitarian principles. International humanitarian law is relevant to the situation
of internally displaced persons because armed conflict and situations of violence constitute
the main causes of internal displacement of civilian population.405The Geneva Conventions
and their Additional Protocols spell out the principle that, in times of armed conflict, those
not directly participating in the aggression are entitled to protection.406
Under international humanitarian law, everyone who is not a combatant is categorized as a
civilian. In the case of international armed conflict, combatants are defined in international
humanitarian law as ‗members of the armed forces of a party to a conflict (other than medical
personnel and chaplains…). They have a right to participate directly in hostilities.‘407This
means that other parts of the population, including people who are displaced should be
distinguished from the combatants by both parties to the conflict, including government
forces. They should not in any way be used as human targets to settle scores between two
404
International humanitarian law is more interested in the fact that war should entail just conduct, as
opposed to concerning itself with issues such as the justifiability of war itself; See Article 51 of the
Additional Protocol to the Geneva Conventions of 1977.
405
Ahlbrandt S The protection gap in the international protection of internally displaced persons: The
case of Rwanda 2004 Working Paper 04/01 at 12.
406
Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces
in the field of August 12 1949; Geneva convention relative to the treatment of prisoners of war of
August 12 1949; Geneva convention for the amelioration of the condition of wounded, sick and
shipwrecked members of armed forces at sea of August 12 1949; The Geneva convention relative to
the protection of civilian persons in time of war of August 12 1949 (these are hereafter referred to as
the Geneva Conventions); Protocol additional to the Geneva Conventions of August 12, 1949, and
relating to the protection of victims of international armed conflicts ( hereafter referred to as Protocol
I); and Protocol Additional to the Geneva Conventions of August 12, 1949, relating to the protection
of victims on non-international armed conflicts of 8 June 1977 ( hereafter referred to as Protocol II).
407
Geneva Conventions Additional Protocol I of 1977 Art 43.
90
warring factions to a conflict,408 neither should they have to suffer un-proportionally from the
consequences of the conflict.409In this case internal displacement is regarded as an unproportional, excessive and unfair combination of consequences of conflicts (in the case of
conflict inflicted displacements) in relation to the ‗concrete and direct military advantage
anticipated‘ by all the parties involved in conflicts or generalized situations of violence that
result in population displacement.410International humanitarian law requires the exercise of
‗precaution‘ to minimize civilian casualties, and prohibits the use of ‗acts or threats of
violence the primary purpose of which is to spread terror among the civilian
population‘411Part of this prohibition may serve to curb the displacement of populations as a
result of terror and threats of attack and abductions, not to mention rape and general acts of
sexual violence which are prevalent in most areas facing the crisis of internal
displacement.412
The law governing internal conflicts is less developed than the body of law set up to deal
with international conflicts. This is because the establishment of international humanitarian
law reflected the prevailing political conditions of its time. States and their representatives
who played a part in setting up international humanitarian law had a more vested interest in
limiting conflicts between each other than curbing insurgencies or internal
disturbances.413This can be seen in prevailing international humanitarian law protection
reflected in the case of non-international conflict by Common Article 3 of the Geneva
Conventions.414 The article uses the less precise articulation of ‗persons taking no active part
in hostilities‘ as a determination of which part of the population qualifies to get protection
under international humanitarian law during internal conflicts.415 The section does not define
such persons, or describe what constitutes taking part in hostilities either. It seems that the
main interest was not vested in protecting persons internally affected by such conflicts
because in most cases such persons were nationals of the other party to the conflict as
opposed to being internal citizens.
408
The international humanitarian law principle of ‗distinction‘ between combatants and civilians and
between military and non-military targets.
409
Geneva Conventions Additional Protocol I Art 51 precludes any ‗attack which may be expected to
cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof which would be excessive in relation to the concrete and direct military advantage anticipated‘.
410
Keen and Lee 2009 as above at 13.
411
Geneva Conventions Additional Protocol I 1977 as above Art 51.
412
Keen and Lee 2009 as above at 13.
413
Keen and Lee 2009 as above.
414
It is called common article 3 because each of the four Geneva Conventions reads exactly the same.
415
Keen and Lee 2009 as above at 13.
91
Article 3, which is common to all the four Geneva Conventions, is applicable to armed
conflicts of a non-international nature, the circumstances leading to internal displacement fall
squarely within such provisions. The article prohibits violence to life and person, it further
prohibits the taking of hostages, and specifically provides for the personal dignity of persons
who find themselves in situations of armed conflict which is not of an international nature
but happens to occur in the territory of one of the contracting parties.416 The article does not
specifically define what ‗armed conflict not of an international character‘ means, but it
excludes international armed conflicts from its application, and it also singles out conflicts
that take place in the territory of one contracting party only; Common article 3 provides that,
In case of armed conflict not of an international character occurring in the territory of one of
the high contracting parties, each party to the conflict shall be bound to apply, as a
minimum, the following provisions:
Persons taking no active part in the hostilities, including members of the armed forces who have laid
down their arms and those placed hors de combat by sickness, bounds, detention, or any other cause,
shall in all circumstances be treated humanely, without any adverse distinction founded on race,
colour, religion, or faith, sex, birth, wealth, or any other similar circumstances.
To this end the following acts are, and shall remain prohibited at any time in any place whatsoever
with respect to the above mentioned persons:
violence to life and person in particular murder of all kinds, mutilation, cruel treatment and torture
taking of hostages, outrages upon personal dignity, in particular humiliating and degrading treatment;
the passing of sentences and the carrying out of executions without previous judgment pronounced by
a regularly constituted court affording all the judicial guarantees which are recognized as indispensable
by civilized peoples.417
Common article 3 does not at any point make specific reference to the protection of civilian
populations that do not take part in hostilities but are affected by them.418 When it generally
states ‗persons not taking part in hostilities‘ it does not specify who such persons might be.
416
Ahlbrandt 2004 as above at 12.
Article 3 Common to the Geneva Conventions of August 12 1949 6 U.S.T. 3114, T.I.A.S. No.
3362, 75 U.N.T.S. 31; 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; 6 U.S.T. 3316, T.I.A.S. No.
3364, 75 U.N.T.S. 135; 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.
418
Junod S ‗Additional Protocol II: history and scope‘ The American University Law Review 1983 Vol.
33 No. 29 at 31.
417
92
Most of the provision provides for people who are former combatants, the sick or wounded,
but what about civilian displaced populations? How are these provided for? There are no
specific judicial guarantees and implementation clauses for protection. Other protection and
assistance provisions are also not provided for by the article.419 It is understandable that at
the time of introducing common article 3 into the Geneva Convention, sovereignty had been
a highly respected notion that could not be breached. The introduction of article 3 was an
initial recognition by the international community of a need not only to protect victims of
inter-state conflicts, but also those affected by non-international conflict taking place within
the borders of their states. As progressive as this was, the intrusion in the form of common
article 3 was very limited and succinct.420 This and other civilian protection gaps within the
provisions of common article 3 of the Geneva Conventions have necessitated the re-visiting
and supplementation of the provisions of this article. But the provisions of the article have
nevertheless been considerable sources of protection norms to be included in the Guiding
Principles.
Additional Protocol I to the Geneva conventions provides extra emphasis to the Geneva
Conventions by further articulating protection of civilian populations from the effects of
hostilities. The protocol requires combatants to distinguish themselves from the civilian
population during their engagement in attacks or military operations or preparations for
such.421 This is meant to provide additional protection to innocent civilians who in the case of
Africa are always caught between armed combatants or insurgencies and government forces
or other warring parties. In cases of displaced populations caught behind enemy lines, or
living within the frontlines of insurgent forces422 distinction is hardly ever made. They are
usually simply targeted as enemy combatants or sympathizers even when they do not actively
participate or engage in combat.
This provision has proved to be hard to practically implement where the nature of the internal
conflict involves abduction of civilians and forceful induction into militia. How does one
distinguish between a civilian, a combatant and a forcefully inducted combatant? Do the
forcefully abducted owing to the nature of the hostilities regard themselves as distinguishable
419
Junod 1983 as above at 31.
Junod 1983 as above at 30.
421
Additional Protocol I 1977 as above Art 44.
422
Insurgents have been described as parties opposing government authorities in non-international
armed conflict.
420
93
combatants? International humanitarian law has attempted to clarify such complex situations
by recognizing the occasional complex nature of armed conflict where armed combatants
cannot distinguish themselves. In such instances it provides that the person(s) will retain their
status as combatants as long as they carry their arms openly.423
The provisions of article 3 common to the Geneva Conventions of August 12 1949 were
further supplemented and substantiated in Additional Protocol II. The article specifically
provides for the protection of victims of non international armed conflict.424 Article 17 is of
particular importance because it explicitly prohibits the displacement of civilian populations,
unless ‗security of the civilians is involved or imperative military reasons so demand.‘ The
article provides that:
The displacement of civilian population shall not be ordered for reasons related to the conflict unless
the security of the civilians is involved or imperative military reasons so demand. Should such
displacements have to be carried out, all possible measures shall be taken in order that the civilian
population may be received under satisfactory conditions of shelter, hygiene, health, safety and
nutrition.
Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.
Movements of civilian populations that might eventually end up as forms of displacement are
restricted by Protocol II. Guarantee for satisfactory conditions of living is provided to the
civilian populations if movement becomes imperative, but any form of forceful expulsion for
conflict related reasons is prohibited.425Protocol II does not cover a scope similar to that one
of common article 3. It is additionally only applicable in situations involving hostilities that
have reached a certain level of intensity. It should be pointed out that any imperative military
reasons provided as an excuse for the displacement of civilian population in article 17 cannot
be justified by political motives. Displacement or forced movement should and can only be
carried out in the interest of the general public and security of the civilians being moved. The
nature of the article is wide and subject to multiple interpretations. If this open-ended nature
of article 17 is not taken into account the gaps within the article can, and have been used
423
Additional Protocol I of 1977 additional Art. 44.
Protocol Additional to the Geneva Conventions of 1949 (Protocol II), opened for signature Dec. 12,
1977, reprinted in 16 int'l legal materials 1442 (1977) (hereinafter cited as Protocol II).
425
Article 17 of Additional Protocol II 1977 as above.
424
94
occasionally to displace populations in order to exercise more effective control over dissident
ethnic groups.426
Provisions of article 17 of Protocol II apply only to states that are party to the Additional
Protocol, and they apply only in circumstances of armed conflict involving official armed
forces and armed dissident forces or any other form of paramilitary groups.427 But what is
described as ‗dissidents‘ should only include groups that have responsible command to
exercise adequate control over part of a state‘s territory to enable them to carry out sustained
and concerted military operations that would call for the implementation of Protocol II.428
Because there are so many restrictions imposed upon the application of Protocol II with
regard to internal conflicts, its application has a narrower threshold and is less likely than that
of common article 3 which applies to all situations involving non-international armed
conflict. The requirement of ‗substantiated territorial control by dissident armed forces‘ is
very relative in individual terrains and hard to prove.429 In some cases even where all the
requirements for the declaration of an armed conflict are satisfied, states are usually
reluctant to acknowledge that certain areas in their territory are under the control of
dissidents, or that there is armed conflict or civil war at all.430In such circumstances the
uprooted populations are actually not protected by international humanitarian law because
they fall through its application gaps on the basis of ‗definitional‘ technicalities.431
An additional source of protection from and during displacement found in the Guiding
Principles can be found in article 49 of the Geneva Convention IV. The article provides more
protection to uprooted and displaced populations in times of humanitarian crisis. The article
426
Training on the protection of IDPs ‗Guiding principles: legal origins and international obligations‘
as above at 3.
427
Article 1 of Protocol II 1977 as above; Ahlbrandt 2004 as above at 13; Junod 1983 as above at 29.
428
In art 1 para 1 of Additional Protocol II it is provided that ‗ This Protocol…shall apply to all armed
conflicts… which take place in the territory of a High contracting party, between its armed forces and
dissident armed forces or other organized armed groups which, under a responsible command,
exercise such control of a part of its territory as to enable them to carry out sustained and concerted
military operations…‘.
429
Article 1 para. 1 of Additional Protocol II 1977 as above.
430
Circumstances that are regarded as falling below the threshold of armed conflict , may involve
internal strife which is most of the time characterized by or followed by civil war, internal disturbance,
a state of serious political, religious, racial or social tension, the suspension of legal guarantees,
recourse to emergency measures and procedures which might result in the ceasing of application of the
rule of law, which in most cases is regarded as a guarantee to individual freedom under State
Constitutions. These will eventually result in mass arrests, degrading inhumane treatment,
disappearances, and eventually mass population displacements; Junod 1983 as above at 30.
431
Ahlbrandt 2004 as above at 14.
95
provides that ‗…Persons thus evacuated shall be transferred back to their homes as soon as
hostilities in the area in question have ceased.‘ The article deals with the return and
reintegration aspect of internal displacement and is relevant to circumstances following the
end of displacement.432International humanitarian law lastly addresses the issue of
displacement by providing for the property rights of displaced persons. This provision is
eventually reflected in the Guiding Principles in the III section. The provision is important
for durably addressing displacement, because failure to address property rights has resulted
in conflicts and further displacement upon return. Section IV of the Guiding Principles which
is constituted of principle 24 to 27 is a reflection and explicit restatement of humanitarian
law as provided above and has been tailored to specifically apply to the situation of internally
displaced persons.
3.3.3 International Human Rights Law
In disturbances and other violent situations not covered by humanitarian law, international
human rights law offers suitable recourse.433 Human rights are freedoms and entitlements
that every individual should enjoy.434 International human rights law which happens to
consist of both customary and treaty law, guarantees these rights and requires states to
respect and fulfill their obligations to protect and realize the human rights of all persons
within those states without discrimination of any kind.435 This includes prohibition of
discrimination based on grounds of age, gender, ethnicity, language, religion, political or
other opinion, as well as national or social origin, property, birth or other status, including
discrimination on grounds of being or having been internally displaced.436
International protection based on the human rights regime is very relevant to the situation of
internal displacement because displacement in itself raises a wide range of human rights
issues.437 Internally displaced persons like any other human beings benefit or should benefit
432
Training on the protection of IDPs ‗Guiding principles: legal origins and international obligations‘
as above at 4.
433
Lavoyer J ‗Refugees and internally displaced persons: international humanitarian law and the role
of the ICRC‘ International Review of the Red Cross 1995 No. 305 at 162.
434
IASC Handbook for the protection of IDPs 2010 as above at 21.
435
IASC Handbook for the protection of IDPs 2010 as above at 21.
436
IASC Handbook for the protection of IDPs 2010 as above.
437
IASC Handbook for the protection of IDPs 2010 as above.
96
from protection offered by international human rights law without any distinction or
discrimination. In circumstances that do not qualify as armed conflict, for instance situations
involving internal strife or unrest, where humanitarian law cannot apply, the only form of
legal protection left for internally displaced persons is human rights law.438Human rights law
is capable of offering legal protection in all phases of internal displacement, starting from its
cause, prevention of the conditions for displacement, protection during displacement and
eventually the search for solutions to displacement.
Human rights seem appropriate for circumstances of internal displacement because the fact
of fleeing one‘s home is already a violation of certain rights under human rights law such as
the right to security of a person, the freedom to choose one‘s residence and so forth. Very
often factors that contribute to internal displacement in the first place are matters such as
discrimination, armed conflict, generalized violence which in themselves constitute
violations of human rights. Displacement, especially internally, results in a rapid change of
status quo of individuals and increases vulnerabilities such as: health risks, lack of permanent
residence and homelessness resulting from residing in inhabitable places; break down of
social structures; separation of families resulting in women and children taking on non
traditional roles and exposure to dangerous circumstances such as sexual violence. Forced
removal from sources of income and livelihood may also be an independent vulnerability in
itself as well as a further disruption of access to social amenities such as schools.
These increased vulnerabilities require an increased form of protection that the human rights
regime is better equipped to offer.439It sets out the obligations of states, which are first and
foremost responsible to ensure the survival, well being and dignity of internally displaced
persons. Although during the development of the human rights system, internally displaced
persons were not taken into account as a specific category and forced displacement was not
independently focused on, there are existing human rights instruments that contain general
provisions that are of particular relevance to internally displaced persons.440 These general
norms have been adapted and explicitly tailored for internally displaced people through
Guiding Principles on Internal Displacement.
438
Ngugi 2008 as above at 32.
Ngugi 2008 as above at 33.
440
Ngugi 2008 as above at 34.
439
97
They include: The right to life, freedom of movement, the right to liberty, security, freedom
from torture and cruel and inhuman punishment or degrading treatment, the right against
slavery, prohibition of retrospective application of penal law and arbitrary interference with
the family, home or privacy.441 These rights can be found in the following human rights
documents: The Universal Declaration of Human Rights (UDHR);442 the International
Covenant on Civil and Political Rights (ICCPR);443 the International Covenant on Economic,
Social and Cultural Rights (ICESCR);444 the Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT);445 the Convention on the Prevention
and Punishment of the Crime of Genocide;446 the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD);447the Convention on
Elimination of Discrimination Against Women (CEDAW);448 and the Convention on the
Rights of the Child (CRC).449 All these existing human rights documents and the provisions
therein that are relevant to the conditions of internal displacement have been synthesized
together with other forms of international law, into one main document that is regarded as the
international basis for the legal protection of internally displaced persons, the Guiding
Principles on Internal Displacement.450
The original foundation of human rights was the United Nations Charter. 451It is imperative to
discuss its provisions as a source of general norms providing for the protection of IDPs. The
Charter is the foundation treaty of the United Nations. It contains reference to the promotion
of human rights, this reference is first seen in the preamble to the charter which states that:
We the people of the United Nations, determined…to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of men and women and of nations large
and small… have resolved to combine our efforts to accomplish these aims…
441
Ahlbrandt 2004 as above at 10.
GA Res 217 A (III) UN Doc A/810 (1948).
443
GA Res 2200 A (XXI) UN Doc A/6316 (1966) 999 UNTS 171, entered into force on 23 March
1976.
444
GA Res 2200, 21 UN GAOR Supp No. 16, 49 U.N Doc A/6316 (1966), 993 UNTS 3, entered into
force on 3 January 1976.
445
GA Res 39/46 UN Doc A/329/51 (1984) 1465 UNTS 85 entered into force on 26 June 1987.
446
GA Res 260(III) un Doc A/810 (1948) 78 UNTS 277,entered into force on 12 January 1951.
447
GA Res 2106 (XX) UN Doc A/6014 (1965)660 UNTS 195, entered into force on 4 January 1969.
448
GA Res 34/180 UN Doc A/34/46 (1979) 1249 UNTS 13, entered into force on 3 September 1981.
449
GA Res 44/25 UN Doc A/44/49 (1989) 1577 UNTS 3, entered into force 2 September 1990.
450
Ngugi 2008 as above at 35.
451
United Nations Charter of 1948.
442
98
The provisions of the preamble describe the main objective of the charter as well as the
formation of the United Nations to be reaffirmation of fundamental human rights of all
peoples without discrimination or distinction to ensure the promotion of human dignity, and
self worth. It actually seems that in this small statement therein lay the basis of all subsequent
human rights protection norms. The statement in the preamble is reinforced in article 1 of the
charter which sets out the purpose of the United Nations as aiming to ‗achieve international
cooperation in promoting and encouraging respect for human rights and fundamental
freedoms for all.‘ An additional important reference to human rights which seems to apply
directly to the situation of internally displaced persons can also be found in article 55 and 56
of the charter. Article 55 provides that the United Nations shall promote ‗universal respect
for, and observance of human rights and fundamental freedoms for all without distinction as
to race, sex, language, or religion. On the other hand, article 56 provides that ‗all members
pledge themselves to take joint and separate action in cooperation with the organization for
the achievement of the purposes set forth in article 55.‘
The Universal declaration of Human Rights452 was simply a more detailed human rights
document, created at the eve of the second world war, as a way of addressing atrocities that
had been committed by various nations before, during and after the war.453 Article 55 and 56
of the United Nations Charter provides that United Nations members will promote
…universal respect for, and observance of human rights and fundamental freedoms for
all.‘454The United Nations assumes responsibility and is charged and legally obliged to
assume this responsibility by using means and taking measures deemed necessary to further
this end.455 In line with this idea, in 1945 after the United Nations Charter had entered into
force, it was recommended that the Economic and Social Council should immediately
establish a Commission on Human Rights which would be tasked with preparing an
international Bill of Rights.456
The Human Rights Commission deals with the elaboration of legal instruments that identify
and define human rights, as well as maintaining and outlining procedures for
452
GA Res 217 A (III) UN Doc A/810 (1948).
Robertson and Merrills 1996 as above at 27.
454
In as much as there are various sections in the Charter that provide for protection of human rights
internationally, the basis of this protection can be found in Article 55 (c).
455
Robertson and Merrills 1996 as above at 27.
456
Robertson and Merrills 1996 as above.
453
99
implementation.457 A Universal Declaration of Human Rights was later adopted on 10th
December 1948. It went on to clarify the duty of the human rights commission, the United
Nations and the international community at large.458 This instrument has managed to lay
down the widest protection norms that have been reflected in specific protection mechanisms
for IDPs.459The Declaration establishes the main civil, political, economic, social and cultural
rights to which persons, including the displaced are entitled to without discrimination.
The Declaration was not a binding instrument in itself, but it gained binding force after its
principles were reaffirmed numerous times by the United Nations and treaties as a reinforced
international standard of principles that all states should observe.460 It has inspired various
constitutions, regional human rights treaties and legislation and because of its widespread
recognition, most of its provisions can now be regarded as part of customary international
law.461This means that international human rights law has other sources of human rights
norms that do not necessarily constitute treaty law and do not require ratification. Such
norms have been accepted as binding upon all states through constant use and out of a sense
of legal obligation. These norms bind all states as long as there is no express and persistent
objection to such norms. These norms are non-derogative in nature.462A state might be
regarded as having violated the provisions of customary international human rights law if it
engages in genocide, slavery, torture, cruel inhuman or degrading treatment or punishment,
arbitrary arrest and detention, or if it fails to exercise the presumption of innocence principle.
As long as these acts are directed towards its citizens, whether internally displaced or not, the
state will be violating human rights law.463
457
Robertson and Merrills 1996 as above.
Since the Declaration was adopted unanimously without a dissenting vote, it actually may be
regarded as the highest authoritative interpretation of the United Nations Charter, even though it was
initially not directly binding on the United Nations members, it strengthened the obligations of the
Charter by making them more precise.
459
Ahlbrandt 2004 as above at 10; Robertson and Merrills 1996 as above at 27.
460
Robertson and Merrils 1996 as above at 29; See also the IASC Handbook for the protection of IDPs
2010 as above at 21.
461
Robertson and Merrills 1996 as above at 29.
462
Ahlbrandt 2004 as above at 10.
463
Ahlbrandt 2004 as above at 10;
458
100
3.3.3.1 The international Covenant on Civil and Political Rights and its optional protocols
(UN/ICCPR)
At the time the Universal Declaration of Human Rights was being adopted under Resolution
217 (III) of 10th December 1948, it had also been decided that more work would be done
with regard to the other two remaining parts of the International Bill of Rights. One of the
initiatives included a covenant containing legal obligations to be assumed by states and corelating implementation measures.464 The starting point in the when it comes to matters of
forced displacement is article 12 of the covenant. The article specifically deals with the
freedom of movement. It provides for liberty of movement and freedom to choose residence
within a particular territory to ‗every one lawfully within the territory of a state.‘ The article
goes on to provide to ‗everyone‘ the right to leave ‗any country‘ including his own‘ and it
finally provides to everyone , the right not to be arbitrarily deprived of the right to enter
one‘s ‗own country.‘465
The above rights provided by the covenant on civil and political rights can also be applied in
the event of internal displacement, but these are rights applicable where one is regarded to be
lawfully within the territory of a certain state. There is also no provision that such rights may
not be derogated from. It should be noted that most of the time internal displacement occurs
during times of ‗internal strife‘ or the like. Under most of these circumstances, the state
regards the circumstances as emergency situations and may mostly claim derogation from the
application of this right.466The final hindrance in implementation of this clause is that that
this right is not specifically tailored for internal displacement situations it is simply a general
norm.467
The Guiding Principles on Internal Displacement have addressed the gap within this
provision by tailor making a similar provision for internally displaced persons and extending
it explicitly within situations on internal displacement.468The principles provide for the right
to liberty of movement for internally displaced persons and freedom to choose residence.
They also provide for the right of the internally displaced to move freely in and out of camps
464
Robertson and Merrills 1996 as above at 30.
Scheinin M ‗Forced displacement and the covenant on civil and political rights‘ in Bayefsky A and
Fitzpatrick J Human Rights and forced displacement Refugees and Human Rights Series Vol. 4 2000
at 66.
466
Scheinin 2000 as above at 67.
467
Scheinin 2000 as above.
468
See principle 14 and 15 of the Guiding Principles on Internal Displacement 1998 as above.
465
101
or other settlements.469 The displaced can under the principles seek safety in another part of
the country, leave their country or seek asylum subject to the instructive principle similar to
non refoulment.470
3.3.3.2 International Covenant on Economic, Social and Cultural Rights (ICESCR)471
The ICESCR contains the most explicit and specific international legal provisions
establishing economic, social and cultural rights.472 It also represents one of the widest
provisions available to the displaced with regard to the right to self determination.473The
covenant is one of the two hard law limbs of the Universal declaration of human rights. The
other one being the above discussed International covenant on civil and political rights
(ICCPR). The two covenants represent enforcement mechanisms of varying nature, even
though they deal with norms that originate form the same document, the UDHR. The reason
for this separate application was among other things influenced by the assumption that unlike
civil and political rights, economic social and cultural rights were incapable of immediate
implementation.474
Social and economic rights have additional limitations under international law. This is
because the status of these rights varies depending on each country or region within which
they are claimed as well as the resources and capabilities of such states.475 In every country
the satisfaction of what is regarded as a basic right will depend on that country‘s communal
context. The ICESCR has provided that the obligations of states to fulfill their obligations to
their nationals are subject to the availability of resources and should be implemented
469
See principle 14 (1 and 2) of Guiding Principles on Internal Displacement 1998 as above.
See principle 15 of Guiding Principles on Internal Displacement 1998 as above.
471
GA Res 2200A (XXI) 16 December 1966 entered into force on 3 January 1976.
472
Chirwa D ‗An overview of the international covenant on economic, social and cultural rights in
Africa‘ at 1Community law centre at http://www.communitylawcentre.org.za/clc-projects/socioeconomic-rights/research on 18-08-2011.
473
Article 1 of G.A Res 2200, 21 UN GAOR Supp No. 16, 49 U.N Doc A/6316 (1966), 993 UNTS 3
(hereinafter ICESCR).
474
Of course this view has been rebuffed, and in the context of Africa, it seems post independence
African States promoted civil and political rights over social, economic and cultural rights; See
Liebenberg S ‗The international covenant on economic, social and cultural rights‘ South African
Journal of Human Rights 1995 Vol. 11 at 359; Onyango O ‗ Beyond the rhetoric: Reinvigorating the
struggle for economic, social and cultural rights in Africa‘ California Western International Law
Journal 1995 at http://www1.umn.edu/humanrts/africa/Oloka-Onyango/html accessed on 28 March
2012.
475
Guariglia O ‗Enforcing economic and social human rights‘ in Pogge T (ed.) Freedom from poverty
as a human right: who owes what to the poor? 2007 at 346-347; See also Chirwa as above at 2.
470
102
progressively.476It has been argued that this provision should not be interpreted at the
expense of deferring efforts to ensure the enjoyment of rights specified in the ICESCR.
Rather the obligation is for states, regardless of their level of national wealth, to act swiftly,
to the maximum of their available resources to ensure the realization of rights in the ICESCR
and fulfill at least ―minimum core obligations‖.477 It should be noted that the term ‗available
resources‘ refers to both domestic resources and any international assistance or cooperation
made available to a state party.478
Economic, social and cultural rights become imperative in the case of internally displaced
persons because of the situations that they find themselves in. Their most necessary survival
needs include: food, water, emergency shelter, healthcare, education, and sanitation. These
are basically what make up the essence of social economic rights.479 These types of rights
make a specific claim in each case, for a certain demand to be satisfied with regard to matters
such as food, or clothing, housing, medical care and other basic needs.480 This provision is of
importance because it gives people within a state the freedom to choose their political status,
and even determine their own economic, social and cultural development. Since IDPs are
usually within the realms of their states, they should, by virtue of this article be afforded the
above freedom and opportunities in whatever parts of the country they might have relocated
to.
Article 11(1) of the covenant recognizes the right of everyone to an adequate standard of
living, including housing. The right has been described as an equivalent to the right to ‗live
somewhere in security, peace and dignity.‘481This applies directly to the situation of IDPs
and other displaced persons, who by virtue of disturbances have to leave their homes or
places of habitual residence. The Committee on Economic, Social and Cultural Rights has
stated that instances of forced evictions are prima facie also a violation of provisions of the
covenant and can only be justified under circumstances that are exceptional and where such
476
See article 2 of the ICESCR 1966 as above.
Chirwa as above at 3; the ―minimum core obligations‖ include the essential levels of rights such as
basic nutrition, primary healthcare, shelter and basic education.
478
Chirwa as above at 3; General Comment No. 3 (fifth session, 1990) ―The nature of state parties
obligations‖ (article 2(1) of the ICESCR) paras. 13 and 14; see also article 22 of ICESCR General
comment No. 2 (Fourth session 1990) ―International technical assistance measures‖.
479
Langford M (ed.) Social rights jurisprudence: emerging trends in international and comparative
law 2008 at 3.
480
Guariglia 2007 as above at 346.
481
See ICESCR 1966 as above; Stavropoulou M ‗On the right not to be displaced‘ East African Journal
of Peace and Human Rights 1998 Vol. 5 No. 1 at 92.
477
103
evictions have occurred in accordance with international law.482 It should be noted that the
right to internal movement, freedom from forced evictions as well as arbitrary interference
with one‘s home are applicable to citizens and non-citizens alike.483 Additional protection
against individual and mass expulsions of citizens is afforded by international customary law
as found in the Universal Declaration of Human Rights which prohibits ―arbitrary exile.‖
The substantive rights contained in the covenant which seem applicable to IDPs include the
right to work,484the right to protection and assistance of the family,485the right to an adequate
standard of living which includes adequate food, clothing, housing as well as continuous
improvement of living conditions.486 Other relevant rights include having the highest
standard of physical and mental health, which IDPs are usually lacking either as a result of
psychological traumas associated with forced movement, violence involved in the process,
rape, social stigma, or as a result of deprived physical health resulting from physical
maiming, and lack of reproductive support among others.487 The right to culture provided in
article 15 of the covenant is also relevant to the displaced, who usually loose social, cultural
and traditional ties as well as values as a result of the displacement.
The issue of competing claims on which of these rights, civil and political, or economic,
social and cultural are preferential has affected how the two covenants have been
implemented in Africa. The consequences of these claims are highly relevant for displaced
groups. In Africa the status of economic, social and cultural rights in relation to the civil and
political rights have been contentious. The progressive nature of social economic rights
leaves vulnerable groups like IDPs unprotected. Mostly because the situation IDPs find
themselves in requires immediate reaction, as opposed to progressive realization.488 The
marginalization associated with displacement compounds realization gaps for such rights as
far as IDPs are concerned.
482
Article of ICESCR 1966 as above.
Stavropoulou 1998 as above at 92.
484
Article 6 of ICESCR 1966 above; which among other things covers the right to choose work, and to
vocational training and guidance.
485
Article 10 of ICESCR 1966 as above.
486
Article 11 of ICESCR 1966 as above.
487
Article 12 of ICESCR 1966 as above.
488
Ngugi 2008 as above at 44.
483
104
At the same time, promoting security for IDPs, which is a civil and political right is given
prerogative in some cases, but this leaves one wondering, how protection can be offered if
people are starving.489 There are also those cases where humanitarian organizations come in
and offer aid and assistance, but disregard protection and security. This also leaves a gap,
because being fed without protection is redundant.490 There is a need to balance the
provisions of these two covenants, because the provision of civil and political rights, in the
absence of social, economic and cultural rights is self defeating as far as IDP protection is
concerned. The Guiding Principles on Internal Displacement have attempted to include the
provisions of both covenants. The principles provide for both civil and political rights, as
well as social, economic and cultural rights.491
3.3.3.3 Other Human rights instruments relevant to IDPs
Other human rights instruments that are relevant and have been reflected in the Guiding
Principles on Internal Displacement include: The Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.492 This convention defines and
prohibits torture under all circumstances. It also provides that states cannot transfer a person
to another state if there are grounds for believing that he or she will be tortured (nonrefoulment).493This principle is the main basis of refugee protection, and would have been
ideal for IDP protection, but the circumstances of application are different. Seeing that IDPs
are usually displaced within the borders of their own countries, it is hard to apply the
principle even though the concept underlying its creation is relevant to IDPs as well. But the
Guiding Principles on Internal Displacement have dealt with similar matters in principle 15
(d). The principle provides internally displaced persons with the right to be protected against
forcible return to or resettlement in any place where their life, safety, liberty and or health
would be at risk. Despite this provision it has become obvious that the provision is hardly
implemented practically and the effect of this is the return of masses of formally displaced
persons to areas they feel uncomfortable.494
489
Ngugi 2008 as above.
Cohen 2004 as above at 467; Ngugi 2008 as above at 44.
491
See Section III of the Guiding Principles on Internal Displacement 1998 as above.
492
(CAT) GA Res 39/46 of 10 December 1984, entered into force 26 June 1987, in accordance with
article 27 (1) United Nations, Treaty Series, vol. 1465, at. 85, available at
http://www.unhcr.org/refworld/docid/3ae6b3a94.html accessed 10 April 2012.
493
IASC Hand book for the protection of IDPs 2010 as above at 22.
494
See return process such as ‗operation rudi nyumbani‘ in Kenya were IDPs were without
consultation obligated to leave areas they were seeking refuge and return to communities that had
490
105
The other relevant human rights instrument is the International Convention on the
Elimination of All forms of Racial Discrimination.495 This convention prohibits racial
discrimination, which happens in most cases when a person or a group is treated differently
because of race, colour, descent, national origin, or ethnic origin with the aim of denying
their human and fundamental rights.496 This convention is relevant to the circumstance of
IDPs because when actual displacement takes place, there is usually a form of discrimination
advanced against a certain communities. Such discrimination results in either their torture, or
genocide or marginalization that eventually culminates in their displacement either by direct
use of force or indirectly through fear of threats of such.497
Principle 6(2) (a) of the Guiding Principles on Internal Displacement lists the above factors
as prohibited causes of arbitrary displacement. The Convention on the Prevention and
Punishment of the Crime of Genocide498 is also closely related to the issue of internal
displacement. This is because a good number of internally displaced persons are usually in
that precarious situation because they are targeted victims of among others, systematic
genocidal acts in their own countries. Hence any protection offered by the Convention would
go far in offering protection to internally displaced persons as well as minimizing or
addressing internal displacement through the prevention and punishment of the crime of
genocide.499
The Convention on the Elimination of All Forms of Discrimination against Women sets a
framework for national action for ensuring that women are treated equally to men. The
convention protects their rights in all fields including, employment, education, and
administration of property. The Convention also ensures that they are protected against
threats aimed at their physical safety, rape and sexual exploitation. In situations of internal
displacement, women are among the most vulnerable populations, they require extra care and
protection. This Convention provides such forms of protection even though the protection
previously visited harm upon them. The effect of this operation was further displacement as IDPs as
they sought safer places to relocate to.
495
Of 1965 (CERD).
496
IASC Handbook for the protection of IDPs 2010 as above at 22.
497
IASC Handbook for the protection of IDPs as above.
498
0f 1948 as above.
499
IASC Handbook for the protection of IDPs 2010 as above at 22; See principle 10 (a) of the Guiding
Principles on Internal Displacement 1998 as above.
106
offered is not aimed specifically at displaced women. The Guiding Principles distinctly adapt
such provisions and tailor them to the situation of internally displaced women.500
The Convention on the Rights of the Child501 together with the Optional Protocol on the Sale
of Children, Child Prostitution and Child Pornography,502 as well as the Optional Protocol on
the Involvement of Children in Armed Conflict503 and the Convention on the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour,504provide for the
concerted protection of the rights and best interests of children (below the age of 18). These
instruments require states to take reasonable measures to ensure protection, care,
psychological recovery, and social reintegration of children affected by armed conflict
including unaccompanied minors or separated children. The Optional Protocol on the
Involvement of Children in Armed Conflict specifically prohibits compulsory recruitment of
children and direct use of persons below the age of 18 in any situations of hostility.505
On the other hand, the ILO Convention on Child Labour obliges states to take all the
necessary measures to eliminate the worst forms of child labour, including slavery,
trafficking, prostitution or forced labour. It also covers the recruitment of children below the
age of 18 into armed militia.506 These instruments are relevant in circumstances of internal
displacement because once again, children below the age of 18 are vulnerable groups in such
situations. They can easily be taken advantage of in circumstances where the social fiber has
broken down as a result of displacement.507These provisions have been explicitly tailored for
situations involving internally displaced children through principle 11 (2) (a and b), 17 (3)
and 13 (1) of the Guiding Principles on Internal Displacement.
Another vulnerable group that is easily affected by internal displacement and hence the
requirement of specific protection is that of Indigenous and tribal people. Their rights are
provided for in the Indigenous and Tribal Peoples Convention.508 The convention provides a
500
See principles 7 (d), 11(a and b), 20 (3) and 19 (20) of the Guiding Principles on Internal
Displacement 1998 as above.
501
1989 (CRC) as above.
502
Of 2000.
503
Of 2000.
504
ILO Convention No 182 of 1982.
505
IASC Handbook for the protection of IDPs as above at 23.
506
IASC Handbook for the protection of IDPs as above at 32.
507
IASC Handbook for the protection of IDPs as above at 23.
508
ILO Convention No 169 of 1989.
107
framework for ensuring that indigenous and tribal people enjoy equal rights to exist with
other persons. Considering their special attachment to land, the convention specifically
addresses the issue of their relocation, and ensures that when this has to happen it is done
lawfully and provides for certain conditions and guarantees that offer them protection against
arbitrary displacement.509 The Guiding Principles reflect a similar provision that is explicitly
tailored for situations of internal displacement.510
3.3.3.4 Critiquing human rights law
It has also been noted that when applied to specific situations involving internally displaced
persons, human rights law can be critiqued. The right of some documents to be derogated
from, especially during emergency times is a very contentious issue.511Fundamental rights
such as the right to life, and freedom, may not be derogated from at any given time. Rights
that are in essence very useful to internally displaced persons, such as the right not to be
subjected to arbitrary arrest and detention, the right to freedom of movement and the right to
residence for instance, may be derogated from.512
It is this distinction in human rights law that becomes imperative when highlighting the
setbacks of the existing framework with regard to protection offered to internally displaced
persons. It is important to note that internal displacement occurs predominantly in situations
involving internal strife or armed conflict, which in most cases lead the existing governments
to define the existing status quo as an emergency. In such circumstances it is acknowledged
that internally displaced persons are subject to a higher risk over their personal safety than
non-displaced persons.513This is because during displacements, the ‗emergency‘ or security
justification can always be raised by governments to suppress rights of individuals and at the
same time derogate from guaranteeing their human rights. By virtue of being displaced IDPs
are not even in a position to invoke their normal citizen rights, the prerogative to derogate
weakens even the little protection in existence.
509
IASC Handbook for the protection of IDPs 1998 as above at 32.
See principle 9 of the Guiding Principles on Internal Displacement 1998 as above.
511
In as much as the right to life and freedom cannot be derogated from, other rights such as the right
against arbitrary detention (Guantanamo- Bay matters), unlawful or unsubstantiated detention, and the
rights such as freedom of movement and residence can be limited. See Article 4 of ICCPR 1966 as
above.
512
Ahlbrandt 2004 as above at 11; See article 4(2) of the ICCPR 1966 as above.
513
Ahlbrandt 2004 as above.
510
108
The human rights system as it exists is by and large based on treaty or customary
international law. This becomes problematic especially with reference to treaty law. When
addressing issues of internal displacement difficulties manifest if the concerned states have
yet to ratify the relevant treaties , or if they are party to the treaty, but have invoked
limitation clauses or derogated from certain guarantees citing public emergency.514
Derogation should not be used as an excuse to violate existing rights, it has been stated that
even if states do invoke derogation clauses, they are still required to respect various
fundamental and non- derogative human rights such as the right to life, the prohibition of
torture and cruel inhuman or degrading treatment and punishment.515
The other failure of the human rights system is that mass transfers, humanitarian and forced
displacements which are a result of these conflicts, are not specifically addressed. It should
be noted that a general norm (freedom of movement) does exist as provided for in article
12(1) of the ICCPR. Similar protections can be found in Article 13(1) of the UDHR as well
as regional instruments, but no specific guarantees exist under human rights law to protect
internally displaced populations against mass transfers or forced return to places regarded as
potentially dangerous. 516The Guiding Principles have adopted these general norms and
specifically used and expanded their function, whilst clarifying grey areas so they could
apply to internally displaced persons explicitly.517
Implementation is also another setback when it comes to the application of human rights to
situations of internal displacement. There is no efficient implementation mechanisms despite
recent developments in attempts internationally and domestically bring violators of human
rights to justice. The existing reporting and complaints systems do not effectively or
specifically address the acute needs of internally displaced persons. The process of
addressing violations is slow and not sufficient when it comes to compelling states to remedy
most grave circumstances involving violations before, during and after internal displacement.
514
Ngugi 2008 as above at 51.
Article 4(2) of the International Covenant on Civil and Political Rights , 19 Dec 1966:999 UNTS
(ICCPR); Geissler N, 'The International Protection of Internally Displaced Persons', International
Journal of Refugee Law 1999 Vol. 11 No. 3 at 459.
516
Ahlbrandt 2004 as above at 11; See the Compilation and Analysis of Legal Norms –Report of the
Representative of the Secretary General, Mr Francis Deng submitted pursuant to the Commission on
Human Rights Resolution 1995/57, Doc E /cn.4/1996/Add. 2, p. 58, 105.
517
See principle 15 of the Guiding Principles on Internal Displacement 1998 as above.
515
109
The most problematic impasse so far is caused by the presence of non-state actors, who are
leading violators next to states when it comes to internal displacement, because they are not
bound by existing human rights law.518
3.3.4 International Refugee Law
This is a branch of law that provides for the protection of refugees. Refugees are defined as
people that are compelled to leave their habitual countries of residence across borders to
another country to seek refuge as a result of fear of persecution. Over the years the definition
of a refugee has altered, but the main content is the ‗border crossing‘ factor. This law does
not apply directly to situations of internal displacement, and in as much as there are
numerous references to refugee law by analogy in the process of protecting IDPs, such
references should be minimized.519Yet refugee law still mainly focuses on issues arising
during displacement, this means that some of its principles can be instructive in matters of
internal displacement. There are nevertheless key differences between the systems of law that
are meant to protect refugees and those created to protect the internally displaced. The
differences can be noted in the definitions adopted. Internal displacement is defined
negatively in terms of international refugee law:
Unlike a refugee, a person fleeing from internal armed conflict does not seek to disestablish his ties of
nationality or allegiance to his country on a temporary or permanent basis…His need for relief, and
therefore temporary refuge, lasts only until his government can assure him de facto protection. 520
While internally displaced persons are regarded as having much in common with refugees,
the critical and most important distinction that sets them apart is that the former have not
crossed an international border, and thus cannot formally claim the protection of international
refugee law.521UNHCR has, despite these limitations, undertaken to protect internally
displaced persons. The United Nations General Assembly through its various resolutions has
over the years conferred special limited mandate on UNHCR to undertake humanitarian
assistance and protection activities on behalf of the displaced provided certain conditions are
518
Geissler as above at 459.
IASC Handbook for the protection of IDPs 2010 as above at 21.
520
Ahlbrandt 2004 as above at 14.
521
Ahlbrandt 2004 as above.
519
110
met.522Even though the UNHCR may undertake these activities in certain isolated cases,
IDPs are not automatically entitled to the international protection of refugee law. Border
crossing still remains a critical factor in the services they can get.
3.3.5 International Criminal Law
It should be noted that national authorities are first and foremost responsible towards the
criminalization of any violations of international human rights and humanitarian law within
their territories. They also have the responsibility to prosecute and take punitive measures
against those responsible by bringing them before national courts or tribunals.523The Rome
Statute of the International Criminal Court (ICC) 524defines a number of crimes that are of
international concern and which can be investigated and prosecuted by the Court, provided
that the Court has jurisdiction over the particular violations. The Court has jurisdiction over
the following acts, which in turn have direct or indirect effect on internal displacement: war
crimes, these include grave breaches of the Geneva Conventions and serious violations of
international humanitarian law covering a wide range of acts such as willful killing, torture
and inhuman treatment; rape and sexual slavery; starvation of civilians; recruitment of
children into armed forces or armed groups, or using them to participate in hostilities;
launching attacks against civilians or civilian objects; and ordering the displacement of
civilians; unless this is a requirement for the security of civilians or for military
imperatives.525
The Court also has jurisdiction over crimes against humanity. This includes acts committed
as part of a widespread or systematic attacks directed against civilians, whether this is done
in times of war or peace. For instance acts of murder, extermination, enslavement,
deportation or forcible transfer of population, arbitrary imprisonment or any other severe
deprivation. Acts of rape and sexual violence, as well as persecution, enforced disappearance
and other inhuman acts intentionally causing great suffering or serious injury to body or to
522
Ahlbrandt 2004 as above.
IASC Handbook for the protection of IDPs 2010 as above at 31.
524
Statute of the International Criminal Court 1998 UN Doc A/CONF. 183/9; (ICC-hereafter referred
to as the Court).
525
Article 8 of the Statute of the ICC 1998 as above; IASC Handbook for the protection of IDPs 2010
as above at 31.
523
111
mental or physical health also fall in this category.526The last international criminal provision
that is relevant to the protection of internally displaced persons relates to punishment for the
crime of genocide. This involves any acts committed with the intent to destroy, in whole or in
part, a national ethnical, racial or religious group.527 This provision is of particular
importance to IDPs because sometimes acts of displacement are usually a result of a
population‘s attempt to flee causes or consequences of the crime of genocide, or genocidal
tendencies. Where local and national governments fail to provide for their protection or
provide punishment to the perpetrators of these violent crimes, international criminal law can
be invoked through provisions of the Statute of the International criminal Court.528
It should be noted that International criminal law is complimentary to national law, this
means that international courts such as the ICC, only exercise their jurisdiction where
national courts are either unwilling or unable to prosecute and punish the crimes in
question.529 Ad hoc Tribunals have also been established by the international community to
deal with crises involving the violation of international human rights law and humanitarian
law including situations involving internal displacement. These tribunals have based their
mandates and subsequent decisions on existing rules of international criminal law.530Matters
dealt with in such tribunals range from matters involving genocide, crimes against humanity,
as well as other war crimes which are usually the main causes of mass population movements
resulting in among others, the crisis of internal displacement.531 Guiding Principles on
Internal Displacement reflect these provisions of international criminal law specifically to
address situations of internal displacement. Principle 10 of the principles includes provisions
for protection against murder, genocide, summary executions, enforced disappearance,
starvation as a method of combat, using human beings as military shields, use of landmines,
and so forth.532
526
Article 7 of the Statute of the ICC 1998 as above; IASC Handbook for the protection of IDPs 2010
as above at 32.
527
Article 6 of the Statute of the ICC 1998 as above; See also the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide as above.
528
IASC Handbook for the protection of IDPs 2010 as above at 32.
529
IASC Handbook for the protection of IDPs 2010 as above.
530
These tribunals include International the Criminal Tribunal for the Former Yugoslavia, and the
International Criminal Tribunal for Rwanda, which were established by the United Nations Security
Council as well as hybrid tribunals such as the Special Court for Sierra Leone; See Article 7 (1)(d),
8(2)(e)(viii) of the Rome Statute of the ICC 1998 as above.
531
IASC Handbook for the protection of IDPs 2010 as above at 32.
532
Principle 10 of the guiding principles reflects article 7 of the Statute of the ICC.
112
3.4 Institutional frameworks: the collaborative response and cluster approach
Internal displacement usually follows or occurs during complex crises that are represented by
total breakdown of state authority and this affects their willingness or ability to provide
protection.533 Such emergencies require multidimensional responses including humanitarian,
human rights, development, security, political as well as the cooperation of various actors
nationally and internationally.534The set back is that there is no one particular institution that
is responsible for addressing the needs of internally displaced persons. Additionally, the scale
and dynamics of such emergencies are usually beyond the capacity of one single agency.
It was realized that emergencies that breed internal displacement require action by multiple
organizations even beyond the United Nations systems, including human rights humanitarian
and development agencies, as well as national local and IDP communities themselves.
During such circumstances an urgent need for joint collaboration and coordination became
obvious.535Such collaboration required teamwork that had to be based in various mandates,
expertise and operational capacities involving a wide range of actors to ensure a
comprehensive response.536A collaborative system was initially set up to address this but it
was not well coordinated because there were no clearly defined responsibilities. To bridge
the gaps that arose and maintain coordination, the Inter Agency Standing Committee (IASC)
comprehensively reformed the system and additionally adopted the cluster approach.
The cluster approach in addition to what is done by collaborative response ensures greater
leadership and accountability in key sectors where gaps in humanitarian response have been
identified.537 It is aimed at ensuring partnerships among humanitarian, human rights and
development agencies. Both systems operate at global and country-levels and are applied to
crises in natural disasters and complex emergencies.538Under this approach agencies will be
held accountable for specific aspects of the global and country-specific humanitarian
533
IASC Handbook for the protection of IDPs 2010 as above at 43.
IASC Handbook for the protection of IDPs 2010 as above.
535
IASC Handbook for the protection of IDPs 2010 as above.
536
IASC ‗Implementing the collaborative response to situations of internal displacement: Guidance for
UN humanitarian and or resident coordinators and country teams‘ September 2004 at 14 at
http://www.unhcr.org/refworld/pdfid/41ee9a074.pdf accessed on 14-05-2012.
537
IASC Handbook for the protection of IDPs 2010 as above at 44.
538
IASC Handbook for the protection of IDPs 2010 as above.
534
113
response.539Response by agencies is no longer a choice, but an obligation, hence HC in the
field have a specific agency to turn to organize the relevant relief in times of crisis. It is
hoped that such approach will not only improve predictability, timeliness and effectiveness,
but will also strengthen collaborative approaches already existing with enhanced
accountability.540
3.4.1 The role of the United Nations
As the nature of conflict changed from being interstate to in-state, so did the nature of
response from the international community. With the increase of internally displaced persons
worldwide, there seemed to be a gap in the existing system for providing protection and
assistance. The international community has started showing an increased interest in taking
responsibility for internationally displaced persons whenever the governments concerned are
unable or unwilling to carry out their responsibilities.541The process of facilitating this was
initially complicated because there is no single organization responsible for assisting the
internally displaced. An initiative was made involving a wide range of human rights,
humanitarian, and development organizations that took responsibility for providing aid and
protection to the internally displaced within the limits of their mandates.542The process
started in 1990 when the General Assembly through the General Secretary‘s recommendation
assigned the United Nations Resident Coordinators the task of coordinating assistance to
internally displaced persons in the field.
This was in the following year followed by the creation of the post of the Emergency Relief
Coordinator (ERF) who was meant to improve the UN‘s response to emergency situations
including those of the internally displaced persons.543The ERC who is also the United
Nations Under-Secretary on Humanitarian Affairs, is among other things responsible for the
coordination of inter-agency humanitarian action, in complex emergencies as well as in
natural disasters. Duties related to the above functions include advocating for protection and
assistance, mobilizing political and financial support as well as briefing the Security Council
539
Bijleveld A ‗Towards more predictable humanitarian responses Inter-agency cluster approach to
IDPs‘ Refugee Survey Quarterly 2006 Vol. 25 Issue 4 at 31.
540
Bijleveld 2006 as above 31.
541
The Brookings Institution, Refugee Policy Group Project on Internal Displacement ‗Improving
institutional arrangements for the internally displaced‘ 1995 at 2.
542
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above at 3.
543
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above at 2.
114
and engaging with governments, humanitarian agencies and other relevant actors.544The Inter
Agency Standing Committee (IASC) was established a year after the creation of the post
ERC with the aim of supporting his work, it is actually chaired by the ERC.545 The IASC‘s
purpose was to provide a forum that brought together the major United Nations and non
United Nations humanitarian, human rights and development partners, NGO umbrella groups
and the Red Cross or Red Crescent Federations. Its main role was to formulate policy,
advocate and to ensure coordinated and effective humanitarian responses to complex
emergencies and natural disasters.546
At the same time, as concerns over protection were increasing, the Commission on Human
Rights requested the Secretary General to prepare an analytical report on internally displaced
persons. In 1992 at the request of the commission, the Secretary General appointed a
Representative (RSG) on the Human rights of Internally Displaced Persons. His
responsibility was to focus specifically on the human rights aspect of internal displacement
and also serve as an advocate for the internally displaced.547In this same year the IASC
created a task force on internally displaced persons. At the recommendation of the task force,
the IASC decided in 1994 that the ERC would serve as the UN‘s reference point for any
request for assistance and protection in situations of internal displacement. The
Representative of the Secretary General for the internally displaced was further invited to
participate in the work of the IASC.548 He is a standing invitee to the IASC‘s subsidiary
bodies as well. He has participated actively and contributed in integrating protection
concerns into international response mechanisms.549
The RSG‘s duties have since encompassed monitoring internal displacement worldwide,
undertaking country missions, establishing dialogues with governments, collaborating with
intergovernmental, regional and non-governmental organizations and making
recommendations to improve international and regional institutional arrangements. He is
544
IASC Handbook for the protection of IDPs 2010 as above at 43.
IASC Handbook for the protection of IDPs 2010 as above.
546
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above at 2; United
Nations GA Report of the Special Representative of the Secretary General on Internally Displaced
Persons A/58/393 of 26 September 2003 at 14.
547
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above at 2.
548
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above.
549
Inter-Agency Standing Committee XXIInd Meeting ‗Protection on internally displaced persons:
inter agency standing committee policy paper‘ December 1999 at 11 at
http://www.icva.ch/printer/doc0000008.HTML accessed on 26-08-2011.
545
115
also responsible for assessing international legal protection, as well as publishing reports on
which governments, the Commission, General Assembly and international organizations are
expected to act.550The RSG basically focuses on advocacy for IDPs, setting global protection
standards, and making recommendations on how the application of existing instruments can
be made more effective. These duties are mainly to facilitate means of assessing the extent to
which protection, assistance and development needs of internally displaced persons are
addressed at ground level. Additionally, during such missions the conversations that take
place are later reflected in the RSG‘s reports and this serves to raise national and
international awareness over areas that need attention. Lastly the findings provide the office
of the RSG with advocacy tools as well as a platform to solicit support from IASC in
implementing the recommendations adopted.551
The IASC adopted the cluster approach in 2005 to bridge gaps that existed within
institutional coordination. The system aims to facilitate a predictable, effective and
accountable inter-agency response in protecting IDPs. It operates within the collaborative
response mechanisms at both global and local levels.552 Each cluster or sector is led by an
international agency or organization with specific expertise in the area. The agency is usually
accountable to the ERC and has the responsibility of ensuring predictable and effective interagency preparedness and response in this area.553This cluster lead is responsible for chairing
and coordinating the work of the relevant global cluster working group which involves all
relevant international actors.
The existing cross cutting areas within which clusters are set up depend on capacities needed
to respond to the internally displaced. These widely differ depending on the needs of the
IDP‘s involved. In some circumstances food is predominantly needed, which immediately
requires the attention of the WFP. In other circumstances women and children might be in
dire conditions. This automatically calls for the attention of UNICEF. At times the internally
displaced might be facing a potentially refugee generating situation, in which case the
UNHCR will be encouraged to provide support.554 Protection of conflict generated IDPs is
carried out by UNHCR, civilians affected by conflicts other than IDPs and those affected by
550
Inter-Agency Standing Committee XXIInd Meeting 1999 as above.
Inter-Agency Standing Committee XXIInd Meeting 1999 as above.
552
IASC Handbook for the protection of IDPs 2010 as above at 44.
553
IASC Handbook for the protection of IDPs 2010 as above.
554
IASC Handbook for the protection of IDPs 2010 as above at 45.
551
116
disasters are protected by UNHCR or OHCHR or UNICEF. Camp coordination and camp
management falls to UNHCR when conflict is involved and IOM when it‘s a consequence of
disaster. Early recovery is addressed by UNDP as the cluster lead. Technical areas such as
emergency shelter are addressed by UNHCR and IFRC depending on whether it is
displacement resulting from conflict or disaster. Other technical areas such as health, water
and sanitation, nutrition, education and agriculture are covered by WHO, UNICEF, Save the
children and FAO respectively. Common services such as logistics and emergency
telecommunications fall under WFP and UNHCR. Food and refugee sectors to which clear
accountabilities already existed are covered by WFP and UNHCR respectively. 555
3.4.1.1 United Nations Organization for Coordination of Humanitarian Affairs (UNOCHA)
This office was originally known as the Department of Humanitarian Affairs (DHA). In 1991
the UN made it clear that there was a need to bring together international, humanitarian and
development agencies dealing with displaced persons for effective coordination.556 There
were delays in the dissemination of aid and assistance, it also seemed difficult for the ad hoc
system to work with so many organizations trying to help the same group of people whilst
employing different approaches and disagreeing every step of the way. It was observed that
even within the United Nations agencies themselves it was time consuming for any
agreement to be made regarding the acceptable coordination arrangements concerning either
division of responsibility, plan of action, or dissemination on ground.557
The Department of Humanitarian Affairs was eventually created by the Secretary General
after the above mixed efforts to address internal displacement.558 The Emergency Relief
Coordinator was nominated to be its head. This was followed by the creation of the Inter
Agency Standing Committee which was composed of all heads of major United Nations,
555
IASC Handbook for the protection of IDPs 2010 as above.
This was achieved through a General Resolution in December 1991, and subsequently led to the
creation of the post of Emergency Relief Coordinator at the Under-Secretary level.
557
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above at 35.
558
In 1992, with a mandate of coordination and leadership among those providing humanitarian
assistance in complex emergency situations as well as natural disasters; providing services that
maximize the efficient use of resources for humanitarian assistance such as consolidating and
managing information including needs assessments, preparation for interagency appeals, financial
tracking of donor response, maintenance of centralized data bases, early warning services and
training programs; acting as the focal point for advocacy on humanitarian concerns, and for
maximizing opportunities for preventive action, fro securing access to people affected by conflicts;
ensuring that emergency relief contributes to future development and that development plans
incorporate measures for disaster mitigation, preparedness and prevention.
556
117
humanitarian and development agencies.559 It operated as one of the mechanisms for the
DHA‘s coordinating role and was chaired by the Emergency Relief Coordinator.560 Other
responsibilities of the Emergency Relief Coordinator included the Central Emergency
Revolving Fund, as well as the Consolidated Appeals Process.561The DHA succeeded in
some matters but failed to deliver in a lot others.562In 1997 the DHA was replaced by a more
compact office of the ‗Coordinator for Humanitarian Affairs‘ , which is mainly involved with
policy development and coordination functions in support of the Secretary General;
advocacy of humanitarian issues with political organs, specifically the Security Council and
Coordination of humanitarian emergency response.563
At the country level, the United Nations Coordinator (HC) is responsible for ensuring the
smooth coordination of humanitarian affairs, including but not limited to the protection and
assistance of internally displaced persons in dire emergency situations at the country level.
The HC is in most cases appointed by the Emergency Relief Coordinator (ERC) in
consultation with the Inter Agency Standing Committee (IASC). In limited number of cases,
the United Nations Resident Coordinator (RC) who usually happens to be the most senior
United Nations official in a particular country can also be designated as the HC. In countries
that are affected by displacement, where the HC has not yet been appointed, the RC is
responsible for ensuring an effective international response to any internal displacement
crisis that arises in the area.564
The responsibilities of the HC are as follows: ensuring that protection gaps are addressed;
promoting respect for human rights and humanitarian law and for the Guiding Principles on
Internal Displacement; advocating with national authorities and other actors for promotion of
respect for humanitarian principles including unrestricted access to IDPs; promoting gender
559
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above at 35;
Ahlbrandt 2004 as above at 29.
560
Brookings Institution Refugee Policy Group on Internal Displacement 1995 as above; the purpose
of the agency was to create a forum to discuss policy matters in the humanitarian area and to serve as
the mechanism for delegating responsibility for internal displacement to different UN agencies to
ensure that both assistance and protection needs were being addressed. This was further complimented
by the creation of the IASC Task force in 1992 which was created to strengthen information exchange
on IDPs. In 1994 the IASC designated the Emergency Relief Coordinator as the ‗reference point‘ for
requests for assistance and protection in situations of internal displacement.
561
Ahlbrandt 2004 as above at 29.
562
It was criticized with regard to its work on IDPs because despite having been confirmed as the
focal point for IDPs it accorded very little attention to them and was often reluctant to assign
responsibilities to other agencies in the field; See Ahlbrandt 2004 as above at 30.
563
See Ahlbrandt 2004 as above at 31.
564
IASC Handbook for the protection of IDPs 2010 as above at 47.
118
mainstreaming and women‘s rights at the policy, planning and implementation levels and;
mobilizing resources for humanitarian response.565In the process of carrying out the above
responsibilities the HC and, or RC works with and in consultation with relevant organizations
on the ground including NGOs and the International Red Cross and Red Crescent Movement.
This coordination is facilitated by an Inter-Agency humanitarian team, created to bring such
actors together.566 The team in consultation with relevant partners decides on the specific
country coordination arrangements which are supposed to be similar to those adopted at the
international level. For purposes of support and in the process of extending coordination
capacities of the HC and or RC, OCHA field presence is usually required. Whether the
presence is in the form of a humanitarian advisor or something more concrete is dependent
on the request of the RC or HC. This might also be a result of the recommendation of the
ERC.567
3.4.1.1. (i) OCHA and the Inter Agency Internal Displacement Unit/Division
The internal displacement unit is a non-operational inter-agency unit within the office for the
coordination of humanitarian affairs. It was officially launched by the UN Secretary General
in January 2002.568 The OCHA-IDP unit is based at OCHA-Geneva offices, but it also has a
liaison in the office of the ERC in New York.569 The name of the unit was changed to ‗IDP
Division‘ it was also re-structured.570 The unit is staffed by people seconded from various
UN agencies and humanitarian and development partner institutions including UNDP,
UNHCR, IOM, UNICEF, a consortium of NGOs as well as staff from the office of the
Representative of the Secretary General on IDPs (RSG). 571
The Division is responsible for providing advice and support on issues of internal
displacement to the Emergency Relief Coordinator (ERC), and the director of the Division
565
IASC Handbook for the protection of IDPs 2010 as above.
IASC Handbook for the protection of IDPs 2010 as above at 48.
567
IASC IDP policy package 2004 as above at 7.
568
McNamara D ‗The mandate of the emergency relief coordinator, and the role of OCHA‘s InterAgency internal displacement division‘ Refugee Survey Quarterly 2005 Vol. 24 Issue 3 at 65.
569
Sites E and Tanner V ‗External evaluation of OCHA‘s internal displacement unit‘ OCHA IDP
UNIT 21 January 2004 at 7.
570
In 2004 it was re-named the Inter Agency Internal Displacement Division; See McNamara 2005 as
above at 65.
571
IASC IDP policy package 2004 as above at 41.
566
119
reports directly to the ERC.572 The unit is also responsible for providing technical expertise
as well as advisory support to UN country teams in the field and undertaking country
missions to fulfill this obligation.573The purpose of establishing the Division has mainly been
to ensure effective support and implementation of the collaborative response to situations of
internal displacement as well as maintaining effective application of the IASC policy
package.574 The Division was intended to support the ERC in promoting predictable and
coordinated response to internal displacement.575The IDD does not necessarily involve itself
with all countries battling with internal displacement crisis. At the recommendation of the
ERC, the division is usually requested to focus on a limited number of selected countries
where the collaborative response is considered inadequate.576 The level of inadequacy is
determined after taking into consideration focal areas of protection or assistance having gaps
in a particular country.577
After a certain criteria has been applied by the division to determine the effectiveness of the
collaborative response, and where the response has been proved to be inadequate, the IDD
(Internal displacement division), may intervene. The intervention may include deployment of
IDP advisors to provide advise, specifically on protection issues and coordination support to
HCs and/ or RCs and country teams. Intervention may also be in the form of deployment of
missions to assist the HCs and /or RCs and country teams in the process of either developing
or refining already existing IDP strategies and making sure that they are effectively
implemented. Intervention may also take the form of making recommendations to the ERC
for an improved international response to situations of internal displacement. Lastly,
intervention may take the form of providing training to heads of OCHA offices on the
content and implementation of IASC policy package. Intervention may also include provision
of advocacy on specific issues relating to IDPs as well as any other efforts to raise awareness
among donors and obtain their increased engagement in the crisis of internal displacement.578
572
Sites and Tanner 2004 as above at 7.
Sites and Tanner 2004 as above; the unit has under taken more than 20 country missions since its
establishment, including the missions it has undertaken on behalf of the inter-agency.
574
IASC IDP policy package 2004 as above at 41.
575
IASC IDP policy package 2004 as above at 5.
576
McNamara 2005 as above at 66.
577
IASC IDP policy package 2004 as above at 41.
578
IASC IDP policy package 2004 as above.
573
120
In addition to the above efforts by the internal displacement division to intervene in specific
countries, it also is responsible for maintaining a watching brief on other current and
emerging situations of internal displacement.579 Where it is clear that a crisis of internal
displacement is arising or on-going, the division directly, or OCHA together with other
partners engaged in the response to internal displacement, may provide ad-hoc support. Such
response is of course subject to the availability of resources as well as the urgency of the
crisis.580
3.4.1.2 UNHCR and internal displacement
The UNHCR‘s engagement with internally displaced persons dates as far back as the 1970s
during its operations in Bangladesh and Indochina. Over the years the role of the UNHCR
has gradually changed in response to the constant changing nature of humanitarian crises.
The agency became more prominent in the 1990s after involving itself with humanitarian
activities in areas such as Somalia, Iraq, the Balkans as well as Liberia, and other states in
Africa.581
The UNHCR seemed to be well equipped to deal with internally displaced persons from the
on set. The reasons for this included the fact that the agency‘s protection expertise and its
operational experience were regarded as the best means by which the international system
could ensure a more consistent, reliable and accountable response to the needs of internally
displaced persons.582 This confidence in the UNHCR was further compounded by the fact
that UNHCR seemed to already have a special interest in the protection and welfare of
persons forcibly displaced by either persecution, situations of general violence, conflicts or
massive violations of human rights. This could have been interpreted largely to mean
UNHCR could also be responsible for all those ‗internally displaced persons‘ who but ‗for
the border crossing‘ factor would have had a claim for international protection.583
579
OCHAs IDP Unit ‗The Internal Displacement Unit-OCHA‘ FMR 20 at 44 at
www.reliefweb.int/idp/docs/references/UnitEvaluationJan2004.pdf accessed on 12-11-2011.
580
IASC IDP policy package 2004 as above at 41.
581
Zard M ‗Towards a comprehensive approach to protecting refugees and internally displaced
persons‘ in Bayefsky A (ed.) Human Rights and refugees, internally displaced persons and migrant
workers: essays in memory of Joan Fitzpatrick and Arthur Helton 2006 at 44.
582
Zard 2006 as above at 46.
583
Inter Agency Standing Committee (IASC) ‗Protection of internally displaced persons‘ InterAgency Standing Committee Policy Paper December 1999 at 17.
121
There is a major similarity between groups of internally displaced persons and refugees
especially with regard to the causes and consequences of their displacement and
humanitarian needs.584This operational and needs based similarity is recognized by the
UNHCR Statute in article 9 which is the legal basis for the UNHCR‘s activity with IDPs.
The article provides that the High Commissioner may in addition to working with refugees
―engage in such activities … as the General Assembly may determine within the limits of the
resources placed at (his or her) disposal.‖585On the basis of this article, and over a long period
of time, a series of General Assembly Resolutions have acknowledged UNHCR‘s particular
humanitarian expertise and encouraged its involvement in situations of internal displacement.
An additional important contributing factor was UN General Assembly resolution 48/116
(1993) which set out important criteria to guide UNHCR‘s decisions on when to intervene on
behalf of the internally displaced. These resolutions, together with article 9 of the UNHCR
Statute, provide the legal basis for UNHCR‘s action on behalf of the internally displaced
persons.586
It should be noted that according to the criteria adopted in 1993 at the General assembly,
with regard to clarifying UNHCR involvement with IDPs, it is specified that consideration
must be made for the agency to assume primary international responsibility for IDPs only
where there is a direct link with its basic refugee activities. This specifically involved return
circumstances where refugees are mingled with IDPs, or where there is a significant risk that
IDPs would eventually become a refugee problem.587In addition to advocating on behalf of
internally displaced persons, and mobilizing support for them, the UNHCR provides
protection and assistance to internally displaced persons after certain conditions are met. First
there has to be specific authorization from the UN Secretary General or other competent
principal organs of the United Nations.588
584
IASC 1999 as above.
Statute of the Office of the United Nations High Commissioner for Refugees G.A Res. 428 (V)
adopted 14 December 1950, annex at art. 9 (hereafter referred to as the UNHCR Statute). There were
also several other resolutions in the Economic and Social Council authorizing UNHCR involvement in
specific humanitarian activities (G.A Res. 47/105 specifically referred to UNHCR activities with
respect to IDPs).
586
Protection of internally displaced persons IASC 1999 as above at 18.
587
Ahlbrandt 2004 as above at 21; Such situations include circumstances where IDPs are present or
are returning in same areas as refugees, or areas in which refugees are expected to return.
588
IASC 1999 as above at 18.
585
122
Additionally, since internal displacement usually affects and involves internal affairs of a
state, the consent of a particular state must be obtained. Where there are other parties
involved in the conflict resulting in displacement, they might have to be involved as well.589
There must be a possibility of accessing the affected population as well as adequate security
for UNHCR personnel and other partners for effective operation. There has to be clear set
degrees of responsibility and accountability. Additionally, provisions to intervene directly
with all parties involved must be made, especially when it comes to matters of protection.
Lastly the availability of resources to carry out such operations is of paramount
importance.590
It has to be taken into account that UNHCR is not traditionally mandated to deal with matters
involving internally displaced persons. It has for decades operated outside the realms of
international and national politics and traditional refugee law was more humanitarian in
content. In as much as this original mandate can be revisited to accommodate internally
displaced persons, the operational involvement of the UNHCR depends on considering that
its participation should not compromise the non-political and humanitarian nature of the
mandate. Its activities in the field of prevention must complement its international protection
responsibilities and maintain consistency with international human rights and humanitarian
law while at the same time making sure that the institution of asylum is not undermined.591
The nature of UNHCRs involvement in the matter of internal displacement varies depending
on the phase of the displacement. It also depends on the degree to which internal
displacement is linked to the refugee problem, and the ‗complimentarity‘ of the mandates and
expertise of other agencies present or contemplating presence in the area. Issues such as
political and operational environment including security considerations can also dictate or
restrict UNHCR activities. There is also a need to recognize the importance of co-operation
and collaboration based on complementary mandates involving other UN agencies as well as
the Emergency Relief coordinator (ERC) and other relevant government and nongovernmental organizations.592
589
IASC 1999 as above.
IASC 1999 as above.
591
Ahlbrandt 2004 as above at 21; stated by the UNHCR Executive Committee; See Barutciski 1998
as above at 3.
592
IASC 1999 as above at 18.
590
123
The main objective of the office of the UNHCR with regard to internally displaced persons is
to improve their protection and promote solutions to their plight. The agency has tried to
achieve this objective through international presence, monitoring as well as interventions and
other assistance attempts. In the case of Africa UNHCR has been involved with internally
displaced persons mostly in post-conflict reintegration operations for returnees.593 It should
be noted though that the agency has been mostly instrumental in cases involving mixed
populations of returnees constituting other forced populations such as refugees and internally
displaced persons as well.594In as much as great good seems to have been done by the
UNHCR, its work has not been done without hardship, critique or even hesitation on the part
of the agency itself.
3.4.1.2 (i) Critiquing UNHCR
There have been a lot of debates centered on whether the agency should be solely responsible
for internally displaced persons, and whether any duties it performs on behalf of the
internally displaced do not in any way affect the asylum regime. Critics of UNHCRs
involvement with internally displaced persons advance a number of arguments. It has been
stated that a broadened application of the mandate of the agency to include in-country
protection contradicts the agency‘s original mandate.595 There is also a camp that subscribes
to the notion that the idea of an increased interest in in-country protection is simply an
attempt by asylum states to curb refugee influxes, lastly it has been contended that UNHCR
is incapable of successfully providing comprehensive protection to groups of displaced
persons within their countries of origin.596
The arguments advanced above have some merit to them. This can be evidenced by
situations where the UNHCR has found itself in dilemma after extending aid to groups of
internally displaced only for borders to be closed on any other groups of internally displaced
593
Bijleveld 2006 as above at 30.
IASC 1999 as above at 19; For instance, in Bosnia and Herzegovina and in Tajikistan the UNHCR
complimented its protection monitoring role with measures to strengthen national protection. For
example it built the capacity of national legal and judicial institutions, local NGOs and community
groups in cooperation with international governmental and non-governmental organizations. The
search for solutions to situations of internal displacement has required UNHCR to cooperate with
international conflict resolution processes, for instance in the Balkans and the Caucasus. Following
these protection and solution-oriented strategy, UNHCR has managed to phase out situations of
internal displacement in areas such as Tajikistan and some parts of Northern Iraq.
595
Bijleveld 2006 as above at 29.
596
Ahlbrandt 2004 as above at 22.
594
124
persons intending to seek asylum. There are countries that have taken advantage of the
situation to minimize their asylum responsibilities.597 What further compounds operational
matters is that UNHCR staff are mostly conversant with refugee law, but not the core
principles of international human rights law, or international humanitarian law.598 This makes
it difficult to operate within a country because these are the main legal principles relied on
for in-country protection.599
The process of protecting refugees differs from measures that have to be taken to protect
internally displaced persons, especially the lack of clarity in existing legal framework as well
as lack of enforcement of states‘ failure to adhere to the existing peace-meal framework.600
Lastly there are many impediments resulting from the legal, administrative and political
nature of dealing with groups of people that are still within their states of origin which are
characterized by red-tape policies as well posing an increased danger to personnel on the
ground, not to mention lack of resources.601As a result of the above concerns and
impediments, UNHCR has been cautious in approaching and providing aid and protection to
internally displaced persons. This can be noted from the varying levels of provision of
assistance to refugees versus IDPs.602
3.4.1.3 IOM (The International Organization for Migration)
This is a migration organization, which is responsible for providing a broad range of services
to individuals, including transport and other basic needs such as food, shelter and supplies. In
the process of providing the above mentioned services the organization offers a form of
protection to internally displaced persons. IOM is particularly responsible for organizing
transport and the whole process of evacuations and returns; providing temporary shelter and
597
This situation happened in Bosnia when UNHCR took on an expanded role to protect within
borders, again it happened in the Kosovo conflict of 1999, and in Afghanistan in 1994 where the
UNHCR tried to manage camps for the internally displaced in Jalalabad, only for the Pakistan
government to respond by imposing strict requirements for Afghans, and restricting asylum in
Pakistan and stating that the creation of UN camps in Jalalabad constituted a safe haven for fleeing
Afghans and an alternative to seeking asylum in Pakistan; See Zard M 2006 as above at 49.
598
Bijleveld 2006 as above at 29.
599
Ahlbrandt 2004 as above at 22.
600
The existing international framework internationally is the UN Guiding Principles, these principles
are soft law, they cannot be enforced and are dependent on the discretion of states for application, they
are also in most cases not even disseminated, and the internally displaced are not even aware that there
is a document they can rely on at least for claiming some measure of protection.
601
Ahlbrandt 2004 as above at 22; Bijleveld 2006 as above at 29.
602
Ahlbrandt 2004 as above at 22.
125
other material relief; providing early warning and emergency analysis of migratory flows;
developing national population information systems and censuses as well as providing expert
advice to governments on migration policies and laws.603IOM is also involved in carrying out
projects dealing with reintegration and vocational training and assistance of IDPs in long
term settlement. The organization has concluded bilateral cooperation agreements with
various governments which specifically provides for the IOM to get involved in assisting
internally displaced persons.604
3.4.1.4 UNICEF (United Nations children‘s Education Fund)
Other organizations involved in the cluster approach include UNICEF which specifically
deals with providing protection to children that happen to be internally displaced as well.
UNICEF ensures that the rights that are provided for in the Convention on the Rights of the
child are upheld. Protection for displaced children focuses preferentially on protecting them
from physical and psychosocial harm inflicted by others including violence, exploitation,
sexual abuse, neglect, cruel or degrading treatment as well as possible recruitment into
military forces.605It should be noted that the mandate of UNICEF is to protect children, but in
the case of internally displaced children, their status renders them even more vulnerable to
each of the above forms of abuse. The protection role of UNICEF entails protection in the
wide sense. This involves attempts to preserve the identity and cultural value and inheritance
rights of internally displaced children, because sudden movement from communities,
threatens the loss of the children‘s heritage.606It also includes the traditional role of protection
which entails the provision of basic needs to children in the form of food, health needs, and
education.
The mandate of UNICEF specifies that the organization is responsible whenever and
wherever women and children are in need. Such groups of women and children may include
refugees and or displaced persons, affected by conflict, by inequity as well as poverty.607
UNICEF is especially useful to the population of the internally displaced because it has
experience in capacity development, community participation as well as development of
603
IASC 1999 as above at 24.
IASC 1999 as above at 24.
605
IASC 1999 as above at 19.
606
IASC 1999 as above at 19.
607
IASC 1999 as above at 19.
604
126
coping skills for children, parents, families as well as communities which is imperative for
the survival, development and protection of displaced communities in situations of violence,
armed conflict or extreme poverty.608
UNICEF is also experienced and capable of providing support in matters involving maternal
and child healthcare, education, water supply, sanitation and promotion of durable solutions
to internal displacement through the creation of self-help capacities at the family level.609
UNICEF also plays a part in reintegration of communities, especially provision of assistance
to unaccompanied children and re-unification with their families, prevention of recruitment
of these children into militia and other armed groups, and demobilization and re-integration
of children that were already recruited into militias.610 The role of UNICEF in the area of
child protection is strengthened by the Convention on the rights of the child, which promotes
UNICEF‘s advocacy and protection roles with regard to children in the widest range of
difficult circumstances, especially when internal displacement is involved since it places
greater obligations on the state of the child and family.611
3.4.1.5 WFP (World Food Program)
The World Food Program (WFP) is mandated to provide food aid to the world‘s most
vulnerable and food insecure populations. In recent years this mandate has extended to cover
IDPs as well. The WFP has taken responsibility in providing food and assistance to IDPs not
only during the displacement phase, but also during the process of return, resettlement,
reintegration and post conflict recovery.612WFP activities in relation to IDPs include the
engagement in negotiations on access and safe passage of humanitarian supplies, including
food. These negotiations are conducted either with governments, or non-state actors. Access
to internally displaced persons, includes, but is not limited to provision of assistance and
protection. It additionally involves access to regular and systematic needs assessments and
follow-up monitoring by the WFP.613
608
IASC 1999 as above at 19.
IASC 1999 as above at 19.
610
IASC 1999 as above at 19, 20.
611
IASC 1999 as above at 20; see also Convention of the Rights of the Child 1989 as above.
612
IASC 1999 as above at 20.
613
IASC 1999 as above.
609
127
3.4.1.6 WHO (World Health Organization)
The World Health Organization plays a key role in supporting national authorities to
strengthen health services as well as improving health care for the general population,
including internally displaced persons. The Constitution of WHO mandates it to ‗provide or
assist in providing, upon the request of the UN, health services and facilities to special
groups‘ which include IDPs.614 Provision of assistance to IDPs by WHO, is totally dependent
on the presence of a WHO country office in the particular country. This ensures that there is
a permanent presence by the organization before, during and after emergencies. The country
office can be supported during a crisis depending on the needs by the regional office
concerned, while WHO headquarters ensures the coordination with other agencies and
donors, as well as facilitating technical backstopping from relevant WHO programmes.
Normally WHO does not provide health care directly, it operates through local or
international health care providers. WHO can involve itself with provision of assistance at
various phases, including during the emergency phase, where it participates in the assessment
of the health situation, by identifying the health needs of IDPs and bringing them to the
attention of national authorities, other UN agencies as well the donor community.
It also can give technical assessment which serves as a basis for advocacy relating to the
protection of IDPs either to the national authorities or the international community. WHO
also fosters and facilitates the involvement of national authorities in the provision of health
care to IDPs and supports them in coordinating with other national and external agencies
available. Lastly, when the integration phase approaches, WHO, together with other UN
agencies, assists national authorities and NGOs to ensure that IDPs are reintegrated. It also
ensures that they are provided the same level of health services as the rest of the population.
This necessitates the formulation of health plans for IDPs which are integrated into long term
strategies and can promote equitable and sustainable healthcare systems for the all
population.615
614
615
IASC 1999 as above at 21.
IASC 1999 as above at 22.
128
3.4.1.7 UNDP (United Nations Development Program)
The General Assembly616 assigned UNDP resident representatives, in their capacities as UN
resident coordinators of humanitarian relief, the duty of coordinating assistance for IDPs. 617
The organization‘s role in long term development was to a large extent regarded by resident
coordinators as being incompatible with its ability to address displacement especially in
emergency situations.618As a result of these concerns, and government objections to
combining human rights, humanitarian and development issues, the UNDP nowadays seems
more inclined to involve itself with IDPs only when rehabilitation and development activities
begin to take place.619
UNDP has an important role in the resettlement of internally displaced persons. During the
displacement stage, it is easy for IDPs to attract aid and support, but they are most vulnerable
in the return and re-settlement stage.620UNDP‘s sustainable human development role
becomes more effective and necessary wherever the target-ability of internally displaced
persons fades especially in: facilitating joint planning of various interventions well ahead to
ensure that development activities are comprehensively harmonized with relief; supporting
the development of the communities that the displaced have been integrated into;
implementing rehabilitation programs in the displaced communities of return in order to
facilitate their sustainable reintegration and; providing local capacity building support to
local entities to enable them to take an active role in the reintegration and resettlement
616
Through Paragraph 7 of Resolution 44/136 of 27 th February 1990.
In 1988, through Resolution 43/116 of 8 th December 1988, the General Assembly called upon the
Secretary General to follow up on the need for an international mechanism to coordinate relief
programs for internally displaced persons. It was then announced in 1989 by the Secretary General
that UNDP resident representatives, citing the capacity of resident coordinators, would be the focal
point for coordinating relief to the internally displaced (report of the Secretary General, A/44/520, of
28th September 1989, at 19; Ahlbrandt 2004 as above at 31.
618
Ahlbrandt 2004 as above; The UNDP was not given protection responsibilities as such, hence it was
not equipped to deal with emergencies, further, the organization‘s development responsibilities require
it to work continuously closely with governments. This meant that coordinating assistance to IDPs in
emergency situations and raising protection or human rights concerns placed the organization in an
awkward relationship with the governments it worked with. Most coordinators feared overstepping
their boundaries considering the sensitivity surrounding the politics of internal displacement; See
Report of the Representative of the Secretary-General on Internally Displaced Persons to the
Commission on Human Rights at its 51st session, Doc .E/CN.4/1995/50, para. 159.
619
Ahlbrandt 2004 as above at 32; See Note by the Secretary General on field representation of the
United Nations system organization: a more unitary approach. Doc A/49/133/Add, of 22 nd April 1994.
620
More attention tends to be paid to them whilst in camps or shelters, but once they are absorbed into
communities, or decide to return to their original communities, support seems to waiver, and they are
forgotten‘ IASC 1999 as above at 17.
617
129
process.621UNDP plays an important role in assisting the resident coordinators to provide
support to IDPs during the displacement phase. It assists in linking rehabilitation activities to
emergency and humanitarian relief, as well as providing support to joint planning among
international and local actors to ensure that the needs of IDPs are not forgotten after the
displacement phase is over.622
3.4.2 International Commission of the Red Cross (ICRC)
The ICRC was founded in 1863 and has to date been mandated by the community of states
under the Geneva Conventions and in recognition of its long standing practical experience to
‗work for the faithful application of international humanitarian law‘.623 Of all institutions that
have been included in the cluster approach to provide for internally displaced persons, the
ICRC has the clearest mandate to protect and assist victims of internal conflict, who happen
to largely or most complexly constitute the internally displaced.624The ICRC is a private,
non-UN organization with an overall statutory responsibility for the application of
international humanitarian law including the Geneva Conventions and their Additional
Protocols in situations of international and non-international armed conflict.625
3.4.2.1 ICRC mandate
The ICRC has recently expanded its role especially in issues concerning the protection and
assistance of civilians in non-international armed conflict. The basis of this protection is in
initiatives to deal with internal conflict to which the Geneva Conventions do not apply. This
can be drawn from the Statutes of the International Red Cross and Red Crescent Movement.
On the basis of these Statutes, the ICRC may provide services to governments in order to
protect civilians exposed to internal strife, many of whom happen to be internally displaced
persons.626
621
IASC 1999 as above.
IASC 1999 as above.
623
Lavoyer 1995 as above at 162.
624
The Brookings Institution Refugee Policy Group Project on Internal Displacement 1995 as above at
19
625
The Brookings Institution Refugee Policy Group Project on Internal Displacement 1995 as above.
626
The Brookings Institution Refugee Policy Group Project on Internal Displacement 1995 as above.
622
130
It should be noted that out all the institutions that are equipped to provide for the internally
displaced, the ICRC is the only one that does not make a distinction between protection and
assistance.627 This distinction has been invoked numerously by aid humanitarian and
development organizations, that are not ready to provide the former for fear of this affecting
their assistance role. ICRC has gained acceptance by both government and insurgent forces
in carrying out its joint assistance and protection mandates.628The reason why the
organization has managed to operate in both instances successfully is because its
representatives extend protection to both sides of the conflict, whilst seeking to reach those
who other humanitarian organizations cannot reach because of the nature of the dangerous
security risks or political restrictions.629
The ICRC mandate is intended to take responsibility for people who happen to be victims of
conflict, whereas the United Nations is mainly responsible to governments. ICRC also has
the benefit of the capability to delegate its work in the field to other organizations or
government based humanitarian sectors.630This makes it easy for the organization to operate
in areas where other organizations can not reach, either by lack of capacity or due to lack of
integrating factors.631The protection role of the ICRC involves monitoring the
implementation of the Geneva Conventions and Protocols with regard to civilian populations,
making representations to governments and non-state actors when violations occur, gaining
access to and securing release of detainees as well as facilitating the release or evacuation of
civilians from dangerous situations, creating protected areas, establishing tracing networks
and arranging for the creation of humanitarian ceasefires.632
The Federation of the Red Cross and Red Crescent works for inspiring, facilitating and
promoting all humanitarian activities carried out by its member national societies to improve
the situation of most vulnerable people. The federation directs and coordinates international
627
Kelenberger J ‗The ICRC‘s response to internal displacement: strengths, challenges and constraint‘
International Review of the Red Cross 2009 Vol. 91 No. 875 at 475.
628
The Brookings Institution Refugee Policy Group Project on Internal Displacement 1995 as above at
20; Ahlbrandt 2004 as above at 27.
629
This willingness to operate in areas that are regarded as dangerous was noted in situations such as
those of Somalia in 1990-91, when the UN absented itself and the ICRC assumed the main
responsibility for delivering aid to the Somalis, including masses of internally displaced people.
630
Such as the Red Cross and Red Crescent.
631
Kellenberger 2009 as above at 479.
632
Plattner D ‗The legal framework of international relief in situations of armed conflict‘ Comite
International De La Croix-Rouge 26 March 1992 Meeting on conflict and international relief in
contemporary African famines at 5.
131
assistance of the movement to victims of natural and technological disasters, to refugees and
displaced people as well as those in health emergencies. It acts as the official representative
of its member societies in the international field. The national Red Cross and Red Crescent
Societies act as auxiliaries to the public authorities of their own countries in the humanitarian
field and provide various services.633
Under the International federation of the Red Cross and Red Crescent Societies it becomes
easy to disseminate aid and protection to internally displaced persons. The main reason for
this is that in most countries there are already existing national branches of the Red Cross and
Red Crescent. These become useful in times of crises because they contribute to matters such
as early warning systems through information sharing, building national and local standby
capacity, mobilizing local, national and international emergency relief, as well as promoting
respect for humanitarian principles through dissemination and training. These societies also
become more useful because they are already mandated to be in the vicinity of the
humanitarian crises sometimes even before the crises begin. They are acquitted to local
demands and practices, they also are capable of being in the area throughout all displacement
phases until solutions are attained.634Despite these achievements and the unique approaches
that the ICRC has adopted to access the internally displaced whilst maintaining good
relationships with governments, there are significant obstacles that the organization still faces
because of its policies.635
3.4.3 Non governmental organizations (NGOs) and International organizations (IOs)
This sector is largely involved in the process of protecting and assisting IDPs. At an
operational level, humanitarian NGOs usually work with IDPs in various areas
worldwide.636These operational humanitarian NGOs do not specifically aid only the IDP
population, they generally aim to provide support as part of an overall relief effort or
sometimes work as implementing partners for various UN agencies. There are various NGOs
and IOs involved in the protection and assistance of IDPs. These include: The Norwegian
633
IASC 1999 as above 23; the services include provision of disaster relief, health as well as social
programmes
634
IASC 1999 as above.
635
The ICRC operates under confidentiality policies and its neutral independent status; See The
Brookings Institution Refugee Policy Group Project on Internal Displacement 1995 as above at 21.
636
The areas that have benefited from a wide array of NGO support, include, the Former Yugoslavia,
the great lakes region, the Balkans, and the South America.
132
Refugee Council( NRC), Through its Internal displacement monitoring centre (IDMC), The
Danish Refugee Council (DRC), the Citizenship Rights in Africa Initiative (CRAI), Minority
Rights Group International (MRGI), Centre for Housing Rights, Women‘s Commission for
Refugee Women and Children (WCRWC) as well as organizations such as CARE and IRIN.
It should be noted that in the process of offering protection, NGOs respond to the needs of
IDPs and vulnerable people based on their mandates and expertise. They can be instrumental
in the implementation of the collaborative approach of protecting IDPs. NGOs are better
suited and located to collect and provide information on protection and assistance to IDPs.
They are capable of operating in areas where the government or other international
organizations are incapable of penetrating either because of location, or because of lack of
trust from the locals, and the IDPs themselves.637Their response capacity is better because
they are usually already located in areas of crisis even before the crisis occurs, and they
mostly employ local people who are conversant with among other things, the language,
culture, and way of life of the people in the particular area.
The process of displacement marginalizes IDPs and takes away their voices. NGOs are a
contributing factor to IDPs regaining their voices, as well as negotiating and making sure that
IDPs participate and are consulted as far as integration programmes are concerned. NGOs
are capable of providing data and information on IDPs which might not be easily available to
other organizations. They are best informed about the conditions of IDPs because they have
on ground and constant access to the group. They also have a unique way of accessing
quantitative and qualitative data before and after displacement, hence their ability to provide
detailed information. They can facilitate access to IDPs on behalf of international
organizations as well as national human rights organizations (NHRIs).638 These visits,
consultations and external relations between IDPs and NHRIs or international organizations
might prove beneficial when it comes to including the needs of IDPs in facilitation of long
term durable solutions as well as reintegration and development programmes.
637
Training on the protection of IDPs ‗The collaborative response to situations of internal
displacement‘ IDMC-Norwegian Refugee Council as above at 3; Beau C ‗Protecting IDPs: what
NGOs can do to support NHRIs‘ Global IDP Project of the Norwegian Refugee Council APF/
Brookings-Bern Regional Workshop on National Human Rights Institutions and Internally Displaced
Persons Colombo-Sri-Lanka 25th October 2005 at 1.
638
It should be noted that at times physical access is possible, but most IDPs communities have
suffered grave human rights injustices and violations, mostly at the hands of governments and people
in positions of authority. The access referred to here is psychological and social access, which might
require trust and can easily be gained by NGOs who the displaced regard as neutral.
133
Lastly NGOs are capable of providing quasi-judicial mechanisms for IDPs. During times of
displacement it is generally difficult for populations to access protection from judicial
systems such as the police, and courts, sometimes even the NHRIs. NGOs provide the
necessary external support needed under the circumstances. This might include the
development of programmes providing legal advice and services to the vulnerable
populations. NGOs have also played an essential role under circumstances of vulnerability by
directing individual cases from IDPs to relevant NHRIs and eventually the international
arena.639 They have also been instrumental in monitoring the implementation of the
recommendations made accordingly.640
3.4.4 Peace keeping Operations and Integrated Missions
An additional sector that has contributed to the protection of internally displaced persons but
has not been given credit is the peacekeeping sector. Peace keeping operations play an
important role in protection of civilians including displaced persons. Security Council
resolutions have provided for the protection of civilians generally and in specific country
situations.641International and regional peacekeeping missions have been forefront in
contributing to the protection of civilians as well as taking over specific protection duties in
respect of displaced populations.642
The United Nations integrated peace missions have been a new approach to addressing
complex conflicts and post conflict situations. Such an approach brings together within a
specific country various components relating to political, military, human rights, gender,
development and rule of law as well as humanitarian activities. The integrated peace keeping
approach also is usually not led by a military commander, rather it is under the guidance of
the United Nations Deputy or Special Representative of the Secretary General. Such missions
have been deployed in Afghanistan, Burundi, Central African Republic, Cote d‘Ivoire, the
Democratic Republic of Congo and the Darfur region of Sudan among others.643
639
In Africa this might include the submission of cases to the African Commission, or sub-regional
judicial bodies.
640
Beau C 2005 as above at 4.
641
See Security Council Resolution 1265 (1999), as well as Resolution 1296 (2000) and Resolution
1674 (2006).
642
IASC handbook for the protection of IDPs 2010 as above at 53.
643
IASC handbook for the protection of IDPs 2010 as above at 55.
134
When it comes to matters of internal displacement, where countries are suffering from
massive displacements that result in or threaten to result in increased instability and serious
protection concerns, peace keeping missions provide protection and assistance to displaced
populations and facilitate durable solutions to the plight of the displaced. Peacekeeping
missions have carried out protection roles through providing physical protection involving
patrols around IDP camps,; improving the conditions in which humanitarian assistance is
provided; establishing humanitarian corridors; assisting to facilitate safe, voluntary and
sustainable return of refugees, and IDPs; contributing to the promotion and respect of human
rights situation in the country and contributing to the efforts to bring those responsible for
the serious human rights violations to justice.
Finally they have been responsible for assisting in strengthening the rule of law, the
implementation of a transitional justice strategy and the development of a legal framework,
after consultation with relevant authorities. Peace keeping operations have also been
responsible for providing training to local police, armed forces, as well as non-state armed
groups on matters of human rights, international humanitarian law, IDP protection, child
protection and prevention and response to sexual and gender-based violence.644
There have been various peace-keeping missions with protection mandates that have inavertedly provided protection to civilians, especially IDPs. These include MONUC in the
DRC, UNAMID in Darfur, UNAMIS in Sudan and UNAMIL in Liberia. In missions such as
the one in DRC the United Nations Security Council made the protection of civilians a
priority when the mandate was extended in December 2009.645The renewed mandate allowed
MONUC to use force to ensure protection of civilians including contributing to the
improvement of the security conditions in which humanitarian assistance is provided, as well
as assisting the voluntary return of refugees and IDPs. Such peace keeping forces have over
the years participated in the work of the protection cluster as field teams. They have worked
closely with humanitarian, protection and development actors to provide security. Their
presence in areas of conflict have minimized or prevented attacks by armed groups on IDPs
and humanitarian actors. They have further cooperated with humanitarian actors to develop
644
645
IASC handbook for the protection of IDPs 2010 as above.
See UN Security Council Resolution 1906 (2009).
135
contingency plans for possible displacement, resulting in the deployment of patrols in areas
of risk.646
3.4.5 Global protection cluster working group (PCWG)
This is ideally the main forum for the operational coordination of ‗protection‘ activities in
humanitarian action at the global and local level. It is chaired by UNHCR and includes
aspects of protection in most of the above discussed humanitarian, human rights as well as
development and peace keeping agencies. The PCWG is responsible for setting up standards
and policies on matters such as protection, identification and dissemination of good practices
as well as supporting the development of strengthened protection capacity. The PCWG has
over the years provided operational field support to humanitarian country teams in countries
that have the cluster system as well as those that do not.
The PCWG has accomplished this by among other things, undertaking support missions to
assist country teams in identifying protection gaps and developing strategies for response;
providing guidance and support for mainstreaming human rights, age, gender and diversity
and HIV/AIDS; supporting advocacy on protection; providing technical support and policy
advice on protection issues; strengthening the protection capacity of humanitarian actors and
other stakeholders, including national and local authorities as well as affected populations
through the provision of training programmes; lastly it provides support in processes of
addressing specific protection concerns in specific countries, and participates in resource
mobilization for protection activities.647
Protection is a complex matter, to adequately facilitate it the PCWG‘s responsibilities are
two-fold, it is responsible for specific areas of responsibility, as well as focal point agencies.
The PCWG is responsible for the coordination of following focal points under the global
protection cluster: rule of law and justice (UNDP/OHCHR), prevention and response to
gender-based violence (UNFPA/UNICEF), protection of children (UNICEF), mine action
(UNIMAS), as well as land, housing and property rights (UN-HABITAT). The PCWG
basically ensures that issues of protection are incorporated into the work of all clusters and
646
IASC handbook for the protection of IDPs 2010 as above at 56; In DRC the protection cluster
together with MONUC have developed a training booklet for peacekeepers with guidance on specific
measures to protect civilians at risk.
647
IASC handbook for the protection of IDPs 2010 as above at 46.
136
sectors through encouraging clusters or sectors to establish focal points for protection;
offering technical expertise and advice to other cluster or sectors, as well as to individual
agencies, organizations and governmental counterparts.
It has also provided support and facilitated participation in joint assessments and analyses, as
well as supporting monitoring and evaluation exercises. Other inputs of the PCWG have
included participation in meetings of other cluster or sectors and involvement of other cluster
representatives in meetings of the protection cluster. It also convenes joint meetings or
workshops among various clusters or sectors on themes of common concern as well as
maintaining regular dialogue and sharing information necessary for promotion of protection
activities.648At the local level the above mentioned protection arrangements translate into
protection clusters or sectors at the country level. This is most of the time achieved by
establishing a protection working group at country level to ensure that gaps are bridged, and
partnerships are built to improve protection response as well as accountability and
effectiveness. Such cluster initiatives have been observed in counties like Uganda, Liberia,
DRC and recently were applied Kenya to address internal displacement.
3.5 Conclusion
Internal displacement has emerged as one of the great tragedies of this century. In its wake it
has left millions of people homeless and vulnerable trapped within their national borders.
This has in turn created a challenge for the international community in terms of adopting
ways to respond to a crisis that is essentially internal in nature. Numerous attempts to assist
the displaced have been made, but in line with these attempts protection is also essential and
has to be provided comprehensively by involving humanitarian, human rights as well as
development agencies and local agents.649 The challenge lies in the harmonization of such
attempts at an international level and how such attempts can be translated into
implementation on the ground.
In the process of addressing these dilemmas direction and support was drawn from already
existing international legal frameworks that were constituted with general norms that could
648
IASC handbook for the protection of IDPs 2010 as above at 47.
Annan K (Former UN Secretary General) ‗Preface‘ to Deng and Cohen 1998 as above at
‗introduction‘.
649
137
offer protection to internally displaced populations. Such frameworks include international
human rights law, international humanitarian law, refugee law as well as international
criminal law. General norms found within these frameworks have been helpful but they lack
practical efficacy as far as IDPs are concerned because they are not meant to specifically
address situations of internal displacement. The consequence of such generality has resulted
in IDPs falling through protection gaps when such norms have been applied.
To address the situation the newly appointed Representative of the UN Secretary General on
the rights of IDPs facilitated the adoption of a set of Guiding Principles which among other
things were a restatement of existing general norms of international law from which IDP
protection could be deduced. These principles tailored these norms to the specific situations
of internal displacement and expanded their application to explicitly address such conditions.
The Guiding Principles have been instrumental in providing for assistance and protection of
internally displaced persons worldwide. Even though they are only soft law, they have
received international recognition and have been incorporated into regional and national laws
thus attaining a binding character in some cases.
Despite such widely acclaimed usage, protection of internally displaced persons still remains
a contentious issue. The principles have not been accepted without resistance. Their soft law
nature has rendered them useless in conditions where states have been unwilling. The
constant need to balance them with state sovereignty has meant less protection for the
displaced they are meant to protect. There is also the problem of disseminating the principles,
in most situations IDP communities and civil society have not been equipped to receive or
raise awareness about the principles. The dissemination and practical application of the
principles including their adoption has in most cases depended on the efforts of individuals as
opposed to a system wide initiative, this has a negative implication in situations where there
are no groups or individuals driven enough to support and initiate the adoption and usage of
the principles.
Another raging issue is implementation of the principles, there is no specific institution set up
to facilitate the implementation of the principles. Efforts that exist are ad hoc and sometimes
highly uncoordinated. The collaborative response system was set up to address this lack of
coordination by bringing together all institutions that deal with humanitarian and human
rights crises including internal displacement. Such approach has been effective to an extent in
138
the sense that systems such as the IASC, the office of the ERC and the Inter Agency-Internal
Displacement Division (IA-IDD) were set up within it and they have played a significant role
in setting up guidance policies and increasing awareness over protection issues faced by
IDPs.650
Yet the system has been ridden by absence of inconsistent coordination, unaccountability and
lack of specific institutional responsibility giving rise to humanitarian gaps in protection of
IDPs.651To bridge these gaps in humanitarian response an additional response mechanism in
the form of cluster based approach has been introduced. Under this system sectoral
responsibilities have been assigned to specific agencies.652 The approach is aimed at ensuring
a more predictable, effective and accountable inter-agency response for the protection of
IDPs in key sectors where gaps have been identified.653 The approach also singles out
protection as a key humanitarian activity in critical need of strengthened coordination and
response. The Global protection cluster working group (PCWG) is the main forum set up to
coordinate protection activities in all cross sectoral humanitarian activities and agencies.
At the same time there are numerous challenges this system still faces, such challenges
consequently make comprehensive IDP protection problematic. The effective functionality of
the cluster approach depends on interdependence and complementarity of all the agencies
involved. This requires close cooperation, communication and accountability.654 If one of the
relevant agencies fails to function, the effect is distributed throughout the whole system and
some agencies will be forced to perform additional duties.655 Additionally there is
misunderstanding and miscommunication in terms of interpretation of responsibilities
between so many stakeholders to an extent that some responsibilities are lost in translation
and cannot be reflected on the ground.656 The clusters have also in some cases failed to
integrate local partners effectively leaving them to operate in isolation and fragmentation in
certain countries thus minimizing their effectiveness.
650
McNamara 2005 as above at 69.
IASC Implementing the collaborative response to situations of internal displacement September
2004 at 5.
652
McNamara 2005 as above at 31.
653
There are sectors such as food and refugees that were well provided for and hence have less
humanitarian response gaps
654
Bijleveld 2006 as above at 32.
655
Bijleveld 2006 as above.
656
Bijleveld 2006 as above.
651
139
Was this manual useful for you? yes no
Thank you for your participation!

* Your assessment is very important for improving the work of artificial intelligence, which forms the content of this project

Download PDF

advertisement