The Protection of Internally Displaced Persons - Generalitat de

The Protectionof Internally Displaced Persons

Adriana Cabeceran Gratacos

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The Office for the Promotion of Peace and Human Rights is a department of the Government of Catalonia, whose core mission is to develop public policies for the promotion of peace and human rights.

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2a convocatòria del Premi de Recerca en Drets Humans Treball finalista

The Protection ofInternally Displaced Persons


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Barcelona, February de 2009

© Author: Adriana Cabeceran Gratacos© Edition: Generalitat de CatalunyaMinistry of Home Affairs, Institutional Relations and ParticipationOffice for the Promotion of Peace and Human RightsAv. Diagonal, 409, 2a08008 BarcelonaTel.: 93 552 60 00Fax: 93 552 60 [email protected]://www.gencat.cat/dirip

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This work may be copied, distributed, publicly broadcast, translated and modified, pro-vided that this is for non-commercial ends and that its authorship be recognised using the following text:

CABECERAN GRATACOS, ADRIANA. The Protection of Internally Displaced Persons. Barcelona: Office for the Promotion of Peace and Human Rights, Generalitat de Cat-alunya, 2009.

The opinions expressed in this publication do not necessarily represent the views of the Office for the Promotion of Peace and Human Rights.

This material was produced in 2009.

3

InTRoDuCTIon

IDPs AnD RefuGees: DIffeRenCes AnD sIMIlARITIes

The main difference: the cross border requirement

The main similarities: nationally unprotected and their consequent flight

The dilemmas and consequences of their differences and similarities

Toward a synthesized definition?

A separate category for IDPs?

Toward a definition of IDPs

The consequences of not having a legal status

THe leGAl InTeRnATIonAl, ReGIonAl AnD nATIonAl PRoTeCTIon

of InTeRnAlly DIsPlACeD PeRsons

State responsibility

International responsibility

The international Guiding Principles

The incorporation of Guiding Principles in national legislation

The failure of a complete national and international protection

State sovereignty

Achievements and weakness in the international-and regional- level

The Charter Body System

The Treaty Body System

Regional Systems

The Geneva Conventions and their Additional Protocols

The International Criminal Tribunals

Other developments and a global point of view

9

10

12

13

14

15

18

21THe leGAl InTeRnATIonAl, ReGIonAl AnD nATIonAl

XPRoTeCTIon of InTeRnAlly DIsPlACeD PeRsons

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23

26

33

37

38

40

43

51

58

60

64

ÍnDeX

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THe oPeRATIonAl PRoTeCTIon of InTeRnAlly DIsPlACeD PeRsons

Searching a better protection for IDPs in the field

Toward a coordination mechanism: the ‘collaborative Approach’

Improving the coordination mechanism: The ‘Cluster Approach’

ConClusIon

67

68

69

71

77

5

InTRoDuCTIon67

68

69

71

77

7

This paper defines Internally Displaced Persons in com-

parison to refugees, claiming that the inexistence of a

convention for IDPs has resulted in a contentious issue

concerning the protection of the later that needs to be

solved from theoretical and practical perspectives.

As Phuong explains,1 there is a ‘lack of conceptual clar-

ity’ concerning the meaning of protection.2 Different ap-

proaches on the conception of protection have been

presented. The Guiding Principles take a very broad

approach to the concept of protection, as they cover

protection against, during, and after displacement.

Borrowing the definition of protection from the ICRC,

protection was defined in the Inter-Agency Standing

Committee (IASC) as referring to: “all activities aimed

at obtaining full respect for the rights of the individual in

accordance with the letter and spirit of the relevant bod-

ies of law (i.e., human rights law, international humani-

tarian law, refugee law)”. The IASC classified protection

activities within ‘three broad categories’; environmental

building,3 responsive action4 and remedial action.5

This approach vis à vis the conception of protection

adopted by this paper bears similarities to that con-

sidered by IASC. However, the paper studies it from

two different perspectives, from a legal as well as an

operational point of view. Legal protection is presented

as creating a global theoretical framework conducive

to prevent internal displacement and to address IDPs

situations, as well as to put remedial action aimed at

restoring dignified living conditions, and redressing

human rights abuses. Operational protection is intro-

duced as an evolutionary process that has result in a

complex action where the ‘three broad categories’ of

protection activities are now also considered.

1 Phuong, Catherine, The Inter-national Protection of Internally Displaced Persons, (Cambridge University Press, Cambridge 2004), 118-121.

2 Internally Displaced Persons, Report of the Representative of the Secretary-General, Mr. Francis Deng, U.N.DOC. E/CN.4/2002/95 (2002), para 58. In Phuong, Catherine, The Inter-national Protection of Internally Displaced Persons, at 118.

3 Activities aimed at creating and/or consolidating a global environ-ment conducive to full respect for the rights of individuals.

4 Activities undertaken in the context of an emerging or es-tablished pattern of abuse and aimed at prevention and/or alle-viating its immediate effects.

5 Activities aimed at restor-ing dignified living conditions through rehabilitation, restitution, reparation.

8Introduction

Therefore, three sections are presented in this paper:

a comparison between IDPs and refugees, an exami-

nation of the legal protection of IDPs, as well as an

analysis of the debate of the operational protection fi-

nally provided. Thus, an examination of the three pillars

of the protection of persons is presented, which result

in some parts studied from global to regional and na-

tional perspectives; as well as an examination of inter-

agency coordination mechanisms that aims to analyze

IDPs’ protection in the field. This study, therefore, aims

to examine the legal and operational protection con-

cerning Internally Displaced Persons.

9

IDPs AnD RefuGees: DIffeRenCes AnD sIMIlARITIes

10IDPs and Refugees:Differences and Similaries

6 Phuong, Catherine, The Inter-national Protection of Internally Displaced Persons, at 13-38.

7 Convention relating to the Sta-tus of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, at Article 1(A) (2).

The main difference: The cross-border requirement

As Phuong explains in her book,6 even if no supervisory

body has been created to ensure a common interpreta-

tion of the provisions of the 1951 Refugee Convention,

it seems that IDPs are excluded from Art. 1A (2), as well

as from the OAU Convention, as they are not outside the

country of their nationality. Therefore, IDPs are not con-

sidered refugees under the law and are therefore unpro-

tected. This exclusion could be explained by the fact that

until 1951 the international texts focused on particular

groups of refugees in order to address specific situations.

The 1951 Refugee Convention presented strong tempo-

ral and geographical limitations as States wished the

granting of refugee status not to become a widespread

practice. It has also been argued that the Convention was

drafted as a political instrument to address the situations

of political dissidents fleeing Communist states. Under

the 1951 Convention, a refugee is a person who:

as a result of events occurring before 1 January a1951 and

owing to a well-founded fear or being persecuted for rea-

sons of race, religion, nationality, membership of a particu-

lar social group or political opinion, is outside the country

of his nationality and is unable or, owing to such fear, is

unwilling to avail himself of the protection of that country.7

The 1951 Refugee definition has been compensated in

regional areas to address their specific problems, first by

African states in 1969 and then by Latin American states

in 1984. Although they add causes of displacement,

they still contain the border-crossing requirement:

The term refugee shall also apply to every person who,

owing to external aggression, foreign domination or events

seriously disturbing public order in either part of the whole

11

of his country of origin or nationality, is compelled to leave

his place of habitual residence in order to seek refugee in

another place outside his country of origin or nationality.8

The term refugee includes persons who have fled their coun-

try because their lives, safety or freedom have been threat-

ened by generalized violence, foreign aggression, internal

conflicts, massive violation of human rights or other circum-

stances which have seriously disturbed public order.9

The 1967 Protocol to the Refugee Convention deleted

the temporal and geographic limitations. However,

the border-crossing requirement seems to be still es-

sential10 due to the fact that the centrality of the state

and the consequent issue of state sovereignty in the

international legal system are still important and strong

concepts.11 The 1967 Protocol to the Refugee Conven-

tion says:

The term ‘refugee’ shall, except as regards the application

of paragraph 3 of this article, mean any person within the

definition of article I of the Convention as if the words ‘As

a result of events occurring before 1 January 1951 and...’

and the words ‘...as a result of such events’, in article 1 A

(2) were omitted.12

The present Protocol shall be applied by the States Par-

ties hereto without any geographic limitation, save that ex-

isting declarations made by States already Parties to the

Convention in accordance with article I B (I) (a) of the Con-

vention, shall, unless extended under article I B (2) thereof,

apply also under the present Protocol.13

8 OAU Convention relating to the Specific Aspects of refugee Problems in Africa, (adopted 10 September 1969, entered into force June 20, 1974) 1001 UNTS 45, at Article 1(2) of the 1969.

9 Cartagena Declaration on Ref-ugees, 22 November 1984, OAS/Ser.L/V/II.66, doc.10, rev.1. 190.

10 Lee, contrary to many au-thors as Goodwin-Gill, Simpson, Hathaway, etc., argued that the border-crossing has not always constituted a crucial requirement in refugee definitions and that it should be dropped of the Refu-gee Convention. In Phuong, The International Protection of Inter-nally Displaced Persons, at 22.

11 Therefore and as Barutciski says, the international commu-nity’s access to IDPs is not un-limited. Barutciski, M., ‘Tension between the Refugee Concept and the IDP Debate’, (1993) 3 Forced Migration Review.

12 Protocol relating to the Status of Refugees (adopted 31 Janu-ary 1967, entered into force 4 October 1967) 606 UNTS 267, Article 1(2).

13 Ibid., Article 1(3).


The main similarities: nationally unpro-tected and their consequent flight

Even if IDPs and refugees can be distinguished de-

pending on the crossing or not of a border, several

issues make them similar as they both have to leave

their homes for a reason, having to face the difficul-

ties that this fact implies. Consequently, they are con-

cerned about similar issues as their safety and protec-

tion and the granting of their rights. There are different

opinions about the appropriateness of establishing

a non-refoulement principle for IDPs as it might not

make sense to create a norm prohibiting the state from

sending their nationals to an unsafe part of the country.

According to some scholars, it seems that its corollary

principle – involuntary return – would not be appropri-

ate for IDPs. However, the connection between IDPs

and refugees is sometimes very clear as a premature

return of a refugee can originate an internal displaced

situation.

Therefore, when conditions in the country of origin are

not yet safe enough or not yet durable, a returned refu-

gee can become an IDP.14 The applying of internal relo-

cation for people facing persecution can also turn to an

internal displacement situation, confirming one more

time, the link between refugees and IDPs.15

14 It has particularly happened in the Balkans, as well as in Af-ghanistan. See Fitzpatrick, Joan, Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons, (Transnational Publishers, United States of America 2002).

15 This is the reason why UNHCR recommended being cautious using this internal flight alterna-tive regulated by the Michigan Guidelines and proposed by Hathaway and Foster. See ‘Sum-mary Conclusions of the Inter-nal Protection/Relocation/Flight Alternative’, San Remo Expert Roundtable, organized by the UNHCR and the International In-stitute of Humanitarian Law (6-8 September 2001). See also the Michigan Guidelines on Internal Protection Alternative, Agreed to at the First Colloquium on Chal-lenges in International Refugee Law April 9-11, The University of Michigan Law School 1999; as well as Hathaway and Foster, ‘Internal Protection/Relocation/Flight Alternative as an aspect of Refugee Status Determination’, background paper prepared for UNHCR’s Global Consulta-tions on International Protection, Round Table of Experts, Fall 2001. (IFA Paper).

13

The dilemmas and consequences of their differences and similarities

Toward a synthesized definition?

Even if it can be seen that border-crossing has been

imposed by international law instead of being an inher-

ent concept of refugeehood, it seems difficult to legally

synthesized refugees and IDPs even if their necessities

are similar.16 The term ‘refugee’ addresses a particular

situation characterized by being a foreigner in a host

country. Therefore, even if the expression ‘the rights

have no borders’ has been increasingly used, refugee

rights cannot logically be applied to IDPs as they ad-

dress the particular situation of being abroad without

the formal protection that comes from being a national

of a particular state. As Professor Grahlmadsen said,

without the border-crossing, the 1951 Refugee con-

vention cannot apply. Moreover, the existing refugee

protection could be undermined, according to some

authors, when grant to citizens in their own state.

However, even if a formal and specific legal protection

of IDPs seems controversial as they are part of the civil-

ian population, internal displacements have increased

over the years and some more efforts in the operational

protection are required in order to assist and protect

IDPs on the ground.17

Therefore, international human rights law appears to

contribute to the actual lack of protection. As Barut-

ciski said, the vulnerability of some groups ‘is a matter

for operational priorities, not for the legal or conceptual

development’.18 However, as Hathaway explains,19 the

question of extended the Refugee Convention to all

displaced people was considered but finally not taken.

16 See Phuong, The International Protection of Internally Displaced Persons, at 24.

17 According to a non prefer-ence principle, the ICRC pro-vides protection and assistance to all civilians and UNHCR has extended its mandate to persons who are not refugees according to their necessities, instead of to their legal status.

18 Barutciski, ‘Tension between the Refugee Concept and the IDP Debate’, (1993) 3 Forced Mi-gration Review, at p. 13.

19 Hathaway, The Law of Refu-gee Status (Toronto: Butter-worths, 1991), at 29.


It was firstly, as he said, because there were limited

resources, then because it would have discouraged

some states from participating in the Convention, and

third because it was considered that it would have con-

stituted an infringement of national sovereignty.20

A separate category for IDPs?

After discarding the synthesized definition of IDPs and

refugees, the question arising now is the appropriate-

ness of designing a separate category even if IDPs do

not have particular rights. In the ‘90s it was suggested

to draft an international treaty outlawing displacement.

According to Barutciski, it could have caused lot of

confusion, different law interpretations, etc. As Phuong

says, there is also reason to think that it could have

been used to reinforce non-entry policies by states

and justify containment strategies. Allowing them to

access asylum states would be contrary to promoting

their ‘right to remain’. However, as Rutinwa argues,21

an international treaty would not have been negative,

as like the Guiding Principles, it would not have been

prejudicial to the right to seek and enjoy asylum in oth-

er countries and therefore non-entrée policies would

not have taken place.

The Guiding Principles provide that the Principles shall

not be interpreted as restricting, modifying or impair-

ing the rights of individuals under international and

municipal law and that ‘… these Principles are without

prejudice to the right to seek and enjoy asylum in oth-

er countries’. There has been extensive debate as to

whether they should enjoy a special protection regime

distinct from other victims of human rights who remain

within their own states.22 However, as the Special Rap-

porteur Kälin said in his article, IDPs do not constitute

20 However, Lee considers that the adoption of an inclusive sec-ond Protocol to the 1951 Con-vention would be desirable. It would reflect current realities and bring into consistency the law and policy of the countries which have subscribed to the Refugee Convention and the 1969 OAU Convention or the 1984 Carta-gena Declaration. It would be necessary to add ‘armed con-flicts, internal strife or systematic violations of human rights’ to the causes of refugees in Article 1A (2) of the 1951 Convention, in addition to ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular so-cial group or political opinion’. It would be necessary to list the human rights treaties and instru-ments of particular relevance to the protection of, and assistance to, all displace persons, whether refugees or IDPs. Finally, it would also be necessary, concerning to this author, to delete the words ‘outside the country of his na-tionality’ from the definition of refugee (Article 1A (2)), in order to do not limit geographically the protection of persons. The UDHR, the two 1966 Covenants, and the conventions against racial discrimination and geno-cide or on children’s or woman’s rights do no contain any geo-graphic limitation. See Lee, L.T, ‘Internally Displaced Persons and Refugees: Toward a legal Synthesis?’ (1996) 9 Journal of Refugee Studies.

21 Rutinwa, Bonaventure, ‘How tense is the tension between the refugee concept and the IDP Debate?’, (1999) Vol. 3 Forced Migration Review.

22 Fitzpatrick, Joan, Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons, (Transna-tional Publishers, United States of America 2002), at 6.

15

a distinct legal category but they have many special

needs because of the fact of their displacement.23

Therefore, a definition of IDPs was considered neces-

sary in order to contribute to their protection.

Toward a definition

As Phuong explains,24 defining IDPs has been a contro-

versial issue as different views have presented different

opinions about who should be considered to be inter-

nally displaced, which situations require international

action, and what form it should take. However, as their

protection is essential, an inclusive definition is needed.

In 1992 the UN Secretary-General at that time, Boutros-

Ghali, presented a first attempt at a definition:

Persons who have been forced to flee their homes sud-

denly or unexpectedly in large numbers, as a result of

armed conflict, internal strife, systematic violations of hu-

man rights or natural or man-made disasters; and who are

within the territory of their own territory.25

However, it was acknowledged that this definition was

not useful to define all internal displacements and an-

other one had to be elaborated. ‘Suddenly or unex-

pectedly in large numbers’ had to be changed, as not

all cases of internal displacement were characterized

by these two adverbs or by being en masse.26 There-

fore, today it is widely accepted that there exist differ-

ent forms of internal displacement.

The Guiding Principles on Internal Displacement have

defined the internally displaced as:

Persons or groups of persons who have been forced to

flee or obliged to flee or to leave their homes or places of

habitual residence, in particular as a result of, or in order

23 Kälin, ‘The Guiding Principles on Internally Displacement-Intro-duction’, at p.560.

24 Phuong, The International Protection of Internally Displaced Persons, at 33.

25 Analytical Report of the Sec-retary-General on Internally Dis-placed Persons, E/CN.4/1992/23, 14 February 1992, para 17.

26 An example is Colombia, where the majority of the people displaced have not fled sud-denly, unexpectedly, or in large numbers.


to avoid the effects of armed conflict, situations of gen-

eralized violence, violations of human rights or natural or

human-made disasters, and who have not crossed an in-

ternationally recognized border.

The International Law Association in 2000, in its Lon-

don Declaration of International Law Principles on

IDPs, also defined them in these terms:

Persons or groups of persons who have been forced to

flee or leave their homes or places of habitual residence

as a result of armed conflicts, internal strife or systematic

violations of human rights, and who have not crossed an

internationally recognized State border.

Persons internally displaced by whatever causes, such

as natural or man-made disasters or large-scale devel-

opmental projects, whenever the responsible State or the

facto authority fails, for reasons that violate fundamental

human rights, to protect or assist those victims.

The substitution of ‘who are within the territory of their

country’ by ‘who have not crossed an internationally

recognized state border’ is due to the confusion that

the former occasioned after the dissolution of some

states in that time, as there were some difficulties in the

recognition of the newly constituted states.27 However,

it has to be noted that the list of causes of displace-

ment is not comprehensive.

Even if there is not a definitive consensus about what

shall be included in the IDPs definition, there have been

some attempts and the refugee definition has contrib-

uted to them. UNHCR considers, as the former Special

Rapporteur Mr. Deng stated, that IDP are persons who

would be refugees had they left their country.28 Phuong

considers that this definition is ‘unduly restrictive’ and

27 That is referring to the dis-solution of the former Soviet Union and the former Yugosla-via. Phuong, The International Protection of Internally Displaced Persons, at 35.

28 Internally Displaced Persons, Report of the Representative of the Secretary-General, Mr. Fran-cis Deng, U.N.DOC. A/50/558 (1995).

17

that other persons that those who have a well-founded

fear of persecution should also be included as we refer

to situations of internal armed conflicts, human rights

violations, etc.

Even if there is no agreement about the situations

and the causes that should be covered by the defini-

tion, the 1969 OAU Convention definition or the 1984

Cartagena Declaration seem to be more inclusive and

therefore better represent IDP situations.29 As Phuong

explains, a wider list of causes is needed.

Phuong emphasizes the importance of the inclusion

of natural disasters and development projects30 as

causes of fleeing, as she considers that they can be

accompanied by human rights causes or implications.31

Therefore, she refuses the required coercion element

that other authors consider in order to determine forced

displacement, which, according to her, do not take into

account this possible link with human rights violations.

Forced relocation32 is another cause of involuntary in-

ternal displacement. In this case, the coercion element

is clearer, and if it is exercised by their government,

the lack of protection by national authorities is obvious.

Therefore, the link between forced relocation and IDP

is indisputable.33

Phuong also talks about the ‘returned displaced’ to

refer to the returnees who return to their state but are

unable to return to their former homes, finding them-

selves in a situation of internal displacement.34 How-

ever, as it has already been said, even if some defini-

tion has been given to IDPs, they do not constitute a

legal status, contrary to refugees. Therefore important

problems of protection emerge from that fact.

29 Natural disasters or develop-ment projects have been con-troversial issues to be included as causes of IDP. Phuong, The International Protection of Inter-nally Displaced Persons, at 30.

30 She points to the displace-ment of people caused by de-velopment projects such as dam construction, urban trans-portation, the creation of forest, reserve parks or mining and thermal power plants. An ex-ample of displacement caused by a development project is the Sardar Sarovar project in India. The Three Gorges Dam on the Yangtze River in China is another project estimated to cause the displacement of about one mil-lion people within the next ten years. Ibid., at 31.

31 It was the case in the mid-1980s when people were relocat-ed after a famine in Sudan. Ibid.

32 An example of forced reloca-tion is taking place in the south east of Turkey. Ibid.

33 As Phuong says, the UN bod-ies have just started addressing this issue. Nevertheless, the Statute of the ICC has recog-nized this practice as a crime against humanity, considering force relocation as one of the most serious crimes of humanity as a whole. Ibid., at 32.

34 An example is the case of some returnees in the former Yugoslavia who cannot return to their original homes as a different ethnic group has been installed there. Ibid.


The consequences of not having a legal status

IDPs do not constitute a legal status and consequently

they are not subject of a specific international conven-

tion. Therefore, even if various bodies of law protect

them, they are not specifically protected by anyone.35

Moreover, practical problems arise also from that issue

as the fact that an initiation and an ended date can

be defined with difficulty for IDPs. Nevertheless, some

discussion has taken place and the problem continues

to be addressed.

It can be argued, according to Phuong, that a person

ceases to be internally displaced when he or she has

decided to return home or to resettle elsewhere.36 How-

ever, as the Special Rapporteur stated, ending displace-

ment is a process through which the need for particular

assistance and protection diminishes. Therefore, after

the Office for the Coordination of Humanitarian Affairs

(OCHA) asked Mr. Kälin, the Special representative, to

explore the question of the ending process, it was de-

cided to develop some benchmarks.37 These bench-

marks define the processes through which durable so-

lutions are determined to have been achieved, as well

as the conditions that mark a durable solution to dis-

placement. They were drawn up to assist international

agencies, NGOs and IDPs themselves to determine

with a more consistent approach, when displacement

ends as they determine common criteria. These draft

benchmarks were widely discussed in the international

humanitarian and human rights community and they

were presented to the Inter-Agency Standing Com-

mittee (IASC) in March 2007. ‘IASC Working Group

welcomed the framework and recommended its incor-

poration in to the humanitarian work of international

organizations ‘as a pilot’ that should be revised in one

35 The legal protection of IDPs will be discussed in the next chapter.

36 It seems that the resettlement is more likely in the case of IDPs than of the case of refugees be-cause it is easier for the formers to do so as they are still in their own country. Phuong., The Inter-national Protection of Internally Displaced Persons, at 36.

37 Internally Displaced Persons, Report of the Representative of the Secretary-General, Mr. Wal-ter Kälin, U.N.DOC. A/HRC/4/38/Add.1 (2007), at 5.

19

or two years. The Working Group also encourages UN

Humanitarian Coordinators to use the Framework ‘to

determine when IDPs no longer have needs that differ

from the population around them’.38

38 Mooney, Erin Addressing In-ternal Displacement: A Frame-work for National Responsibility (Brookings Institution-University of Bern, Washington D.C. 2005), at 5. (hereinafter Brookings-Bern Project on Internal Displace-ment).

21

THe leGAl InTeRnATIonAl, ReGIonAl, AnD nATIonAl PRoTeCTIon of InTeRnAlly DIsPlACeD PeRsons

22

The legal international, regional, and national protection of Internally Dis-placed Persons national Protection: state Responsibility

IDPs reside within the borders of their own coun-

tries and are under jurisdiction of their governments.

Therefore, they must be protected first, as all national

populations, by their state. For example the German

constitution,39 which distinguishes between human

rights (‘persons’ e.g. Art 16(a)) and rights only appli-

cable to German citizen (‘all German’ e.g. art. 11), pro-

tects its citizens in several articles:

Article 1 (3) [Human dignity]: The following basic rights

shall bind the legislature, the executive, and the judiciary

as directly applicable law.

Article 11 (1) [Freedom of movement]: All Germans shall

have the right to move freely throughout the federal territory.

The Spanish Constitution,40 for example, also protects

its nationals in several articles:

Article 53: the rights and liberties in the second chapter of

the present Title are binding on all public authorities (…).

Article 19: Spaniards have the right to freely select their

residence and to travel in the national territory. They also

have the right to enter and leave Spain freely under the

conditions established by law. That right cannot be re-

stricted because of political or ideological motives.

Moreover, international treaties, agreements, etc.

require the states to comply with the provisions rati-

fied. Therefore, as will be explained later, the Guid-

The legal international, regional,and national protection of InternallyDisplaced Persons

39 Cf. Basic Law for the Federal Republic of Germany, Federal Law Gazette, 23 May 1949, pp. 1 et seq.

40 Spanish Constitution, 6 De-cember 1978 (BOE nº 311.1, 29 December 1978).

23

ing Principles were created to be implemented by the

states. Moreover, some States explicitly include in their

Constitutions their obligation of conformity with inter-

national treaties, agreements, etc. Spain does it in its

article 10 (2):

The norms relative to basic rights and liberties which are

recognized by the Constitution shall be interpreted in con-

formity with the Universal Declaration of Human Rights

and the international treaties and agreements on those

matters ratified by Spain.

In this international and national law context, the Guid-

ing Principles have been introduced, as it is going to be

explained afterwards, in several national legislations.

However, national protection is still not always pro-

vided. Therefore, the international community started

responding to this lack of protection.

International protection: international responsibility

As Bagshaw explains,41 in the late 1980s, the interna-

tional community started responding to internal dis-

placement. Internal displacement became a subject of

increasing international concern due to the growing of

the phenomena, not being solved by national law, as

well as by the attitude change to refugee protection

during the 1970s and 1980s and their interest in pre-

venting mass refugee flows.

It was in the International Conference on the Plight of

Refugees, Returnees and Displaced Persons in South-

ern Africa (SARRED) where the five million internally

displaced persons in Angola and Mozambique were a

central issue as there were no appropriate international

41 Bagshaw, Simon, ‘Developing the Guiding Principles on Inter-nal Displacement: The Role of a Global Public Policy Network, Case Study for the UN Vision Project on Global Public Policy Networks’ (1999) GPPP, at 72.

24The legal international, regional,and national protection of InternallyDisplaced Persons

mechanisms to assist them. In 1989 the General assembly

requested the Secretary General ‘to consider the need for

the establishment, within the United Nations system, of a

mechanism to ensure the implementation and coordina-

tion of relief programs to internally displaced persons.’42

In 1990 the Economic and Social Council requested the

Secretary-General to initiate a U.N. system-wide review

to assess the experience and capacity of U.N. entities in

the provision and coordination of relief assistance to and

protection of refugees, displaced persons and returnees.

The International Conference on Central American Refu-

gees (CIRE-FCA) in 1989, recognized that conflicts in the

Americas had also resulted in IDPs, a part of in Refugees,

and that they needed special assistance even if they were

under jurisdiction and protection of their governments.43

However, as many authors agreed, the major impetus be-

hind international recognition of the problem of internal

displacement lay with a group of NGOs that mobilized in

need of assistance and protection. In February 1990, a

meeting took place with diplomats and representatives

of inter-governmental and non-governmental organiza-

tions to discuss and start addressing the issue.

As the General Assembly is less accessible to NGOs,

they decided to summit a draft resolution assisting the

Commission of Human Rights in taking the issue for-

ward.44 Austria agreed to the importance of the issue and

introduced a draft resolution on internally displaced per-

sons, based on the statement submitted to the Commis-

sion, which was adopted without a vote. This resolution

requested for a human rights analytical report from the

Secretary-General on internal displacement and a con-

ference attended by human rights lawyers, humanitarian

activists, UN staff, and personal of regional organizations

and governments took place in Washington D.C in June

1991. They discussed the international legal framework

and the possibility of creating a U.N. human rights mech-

42 UNGA Res. 43/116 (1998)

43 Declaration and Concerted Plan of Action in Favor of Central American refugees, Returnees and Displaced Persons, UN Doc. CIREFCA/89/14 (1989), Para. 7, chap. II, Part 1 (A).

44 Written statement submit-ted by the Commission of the Churches on International Affairs and the Friends World Commit-tee for Consultation (Quakers), non-governmental organizations in consultative status (category II), E/CN.4/1991/NGO/1 (1991).

25

anism on IDPs, concluding that it was necessary to clarify

and strengthen the existing international norms and rec-

ommending the appointment of a special rapporteur.45

The Secretariat suggested the elaboration of more specific

guidelines on the protection of IDPs, and the report created

was submitted and adopted by consensus by the Commis-

sion in 1992. After wide consultations with NGOs, Francis

Deng was appointed by then Secretary-General Boutros-

Ghali as his representative on IDPs. Since then, annual re-

ports have been presented in the Commission -now the Hu-

man Rights Council- by the Special Rapporteur.

Mr. Deng reported until 1995 and Mr. Kälin has been report-

ing since. Mr. Deng wrote a comprehensive study presented

in the Commission in 1993 with the help of several NGOs,

experts from the Brookings Institution and the Refugee Pol-

icy Group (RPG), as well as with the Harvard Law School

Human Rights Program and the Yale Law School Schell

Center for Human Rights. Studies that had already been

presented had shown tensions between those who thought

that the law covered the rights of the internally displaced

and those partisans of a new regime. The study highlighted

the absence of a single organization within the U.N. system

with specific responsibility for the internally displaced and

suggested the establishment of a mandate of an existing

or new agency. It recommended the agencies involved in

internal displacement to adopt a temporal focus on that is-

sue. However, their protection would still be addressed by

human rights mechanisms appointed by the Commission.

The Special Rapporteur’s mandate was extended and the

process of developing the normative framework could be-

gin. A group of experts in international law collected and

analyzed the existing legal norms in the three pillars of the

protection of persons,46 raising the rights and the needs of

IDPs and clarifying the problem of determining which guar-

antees applied in a specific circumstance.47

45 The possibility of the estab-lishment of a working group was finally rejected as they con-sidered that it would have been less effective and more costly.

46 ‘In recent years, awareness has grown that three formerly distinct legal regimes must con-verge substantively and proce-durally, to provide more effec-tive redress to victims of forced displacement.’ Fitzpatrick, Joan, Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Per-sons, at p. 2.

47 Therefore, human rights law, humanitarian law and refugee law were examined. Moreover, Resolutions of the General As-sembly and the Security Coun-cil were also taken in consid-eration, as well as standards drafted by expert non-govern-mental bodies, the jurispru-dence of the U.N. human rights treaty bodies and the Commis-sion’s thematic mechanisms.


The international Guiding Principles

The Guiding Principles on Internally Displaced en-

dorsed by the ICRC and the High Commissioner for

Refugees (UNHCR) describe IDPs48 and constitute a

set of their rights and needs, resulting from the work

done by the groups of experts collecting and analyz-

ing the existing law.49 They aim to address the spe-

cific needs of internally displaced persons worldwide

by identifying rights and guarantees relevant to their

protection and assistance.

48 According to the Special Rap-porteur Kälin, it is not possible to talk about a definition. Therefore, he talks about a description.

49 Cohen and Deng identify the deficiencies of the existing law protecting IDPs. The authors refer to ‘normative gaps,’ (Nor-mative gaps exist where interna-tional law does not provide suffi-cient protection for the legitimate needs of IDPs, e.g. restitution of, or compensation for, property lost as a result of internal dis-placement) ‘applicability gaps’, (Human rights law is only binding on state actors. Therefore, ap-plicability gaps arise where, for example, persons are internally displaced at the hands of insur-gent groups or other non-state actors. They also talk about ap-plicability gaps when derogable rights are exercised) ‘consensus gaps,’ (Consensus gaps occur where provisions regarding IDPs are not explicit, e.g. with regard to the return of displaced per-sons to situations of imminent danger, the case law refers only to interstate return) and ‘ratifica-tion gaps’ (Many countries have created ratification gaps not yet ratifying the major human rights treaties and/or Additional Proto-cols of the Geneva Conventions). They prioritize, among others, the following changes in internation-al law: protections for internally displaced women against gen-der-specific violence; guarantee against forced return to danger-ous places; and creation of a state duty to accept humanitar-ian relief for IDPs and to protect representatives of relief organiza-tions. The incorporation of these principles into international law is a key element of the authors’ proposal for a comprehensive and effective global strategy for protecting IDPs. Cohen, Roberta and M. Francis, Deng Refugees and Displaced Persons: Masses in Flight: The Global Crisis of In-ternal Displacement (Brookings Institution Press, Washington, D.C 1998)

27

They restate the existing law and also highlight and ad-

dress the weakness50 of human rights and humanitar-

ian law to adequately protect the growing number of

IDPs.51 They explain the obligations of national authori-

ties and non-state actors toward these populations.

Therefore, even if they are non binding instruments,

they provide guidance at all times to the Representa-

tive of the Secretary-General on IDPs, to states, inter-

governmental and non-governmental organizations

and authorities, and to groups and individuals involved

in them. They identify the various causes of internal dis-

placement, including natural disasters, human-made

disasters, conflict, and violations of human rights. In

addition, they cover all phases of displacement: the

pre-displacement phase, displacement itself, and the

return or resettlement and reintegration phase. As Kä-

lin says, the Guiding Principles facilitate the invocation

and application of relevant legal norms to the three

possible situations of displacement, trying to specify

the meaning of general norms and developing certain

general principles of human rights law where the exist-

ing treaties and conventions may contain some gaps.52

Moreover, as Phuong said, they present the conse-

quences of displacement as well as their causes. They

are, therefore, a complete and useful instrument for the

protection of IDPs.

As it as been already said, the Guiding Principles are

based on the three pillars of the protection of persons.

As Lavoyer said,53 this base makes them innovative as

it shows the complementarity between these three pil-

lars of law.

Refugees and IDPs have the common element of hav-

ing being forced to leave their homes and finding them-

selves in ‘refugee-like’ situations. Therefore, ‘refugee

50 As already said, prior to the creation of the Guiding Prin-ciples, scholars Francis Deng and Roberta Cohen noted that four major weaknesses in human rights and humanitarian law de-served attention. These included the need to: 1) fill in the gap be-tween human rights and humani-tarian law that can exist in the transition between peace time and wartime; 2) create obliga-tions for non-State actors; 3) en-courage states to protect human rights despite not being a signa-tory to international treaties; and 4) develop similar protections granted to refugees under the Refugee Convention. They be-lieved that IDPs needed a spe-cific instrument to adequately represent their needs. Entwisle, Hannah ‘Tracing cascades: the normative development of the U.N. Guiding Principles on Inter-nal Displacement’ (2005) 19 Geo. Immigr. L.J., at p. 373.

51 The GPs are based on existing law, but as Kälin said, they also progressively develop certain general principles of IHRL when some gaps exist, e.g. women’s and children rights, non-refoule-ment for IDPs, the right of restitu-tion of property, etc.

52 For example, Principle 20 states, as many human rights instruments, that ‘every human being has the right to recognition everywhere as a person before the law’. The GPs go further by saying that to give effect to these rights for IDPs, the authorities concerned shall issue to them all the documents necessary for the enjoyment and exercise of their legal rights. Other examples of specificity can be found in Princi-ple 12, 17, and 23. Concerning the development of general principles when some gaps exist, we can refer to the protection of return to situations of imminent danger. This provision, possibly deduced from the prohibition of inhumane treatment, was especially articu-lated, as no provisions concern-ing internal displacement exist as the case law only refers to return across international borders. The right to be protected against ar-bitrary displacement is another example as described in Principle 6 when not explicitly mentioned in other international instruments.

53 Lavoyer, J.P., ‘Guiding Prin-ciples on Internal Displacement’ (1998) 324 International Review of the Red Cross, at p.468.


law, by analogy, is considered by the compilation to

be used in proposing rules and establishing guidelines

to protect the needs of the internally displaced.’54 The

Hague Regulations of 1907,55 the four Geneva Con-

ventions of 194956 and the two Additional Protocols of

197757 contain the customary laws of war that regulate

the conduct of hostilities and seek to protect the vic-

tims of armed conflicts. These norms were also part

of the basis that formed the Guiding Principles. When

the Guiding Principles were created, it was the general

consensus that these norms were part of customary

international law, binding on all states.58 However, ac-

cording to some authors, Additional Protocol II is not

part of customary international law. Meron, for example,

considers that this relation is impeded by the absence

in military manuals of rules governing internal armed

conflict and the prevalence of inhumane practices in

these conflicts.59 For Greenwood, Additional Protocol

II is part of treaty law because there is no substantial

state practice evidencing the acceptance of the provi-

sions into customary law.60

As it has been already said, non-legally binding instru-

ments also influenced the Principles, as several mech-

anism and bodies in the treaty and charter bodies were

considered.

54 Internally Displaced Persons, Report of the Representative of the Secretary-General, Mr. Francis Deng, Compilation and analysis of legal norms, U.N.DOC. E/CN.4/1996/52/Add.2 (1996) para. 25.

55 Hague Convention (IV) Respect-ing the Laws and Customs of War on Land, concluded Oct. 18, 1907, entered into force Jan. 26, 1910, re-printed in J.B Scott ed., The Hague Conventions and Declarations of 1899 and 1907 100-27 (1918).

56 Geneva Convention for the Ame-lioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S;Geneva Convention for the Ame-lioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85;Geneva Convention Relative to the Treatment of Prisoners of War, Au-gust 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

57 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, reprinted in 16 I.L.M. 1391, 1429-31 (1977);

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature Dec. 12 1977, reprinted in 16 I.L.M. 1442.

58 E/CN.4/1996/52/Add.2, para. 22.

59 Meron, T., Human Rights and Humanitarian Norms as Customary Law 73-74 (1989).

60 Greenwood, ‘Customary Law Status of the 1977 Geneva Proto-cols’ in A. Dilissen and G. Tanja eds., Humanitarian Law of Armed Conflict. Challenges Ahead. Essays in Honour of Frits Kalshowen 113 (1991).

29

The question that arises here is why a binding instru-

ment has not been established in order to protect

IDPs. Could a binding instrument for IDPs not have

been achieved? Would it have been ineffective be-

cause it would have present less progressive norms or

less likelihood to be accepted in the national level? As

Cohen explains, the Commission requested the Rep-

resentative to develop an ‘appropriate framework,’

carefully avoiding the term ‘legal’ framework. What

was considered essential was a better implementation

of existing law rather than a new instrument. Several

organizations, like the International Committee of the

Red Cross (ICRC), expressed reservations about the

creation of a new instrument, as they considered that

it could undermine or interfere with the Geneva Con-

ventions and what they provide. Moreover, there were

also fears that the Principles would have the effect of

discriminating against other groups.

However, as it has already been said, even if they are not

binding, they still contribute to the protection of IDPs. It

has been argued that they are not a ‘brand new’ law,61

but that they constitute a contribution to the increas-

ing corpus of ‘soft law’ or ‘non-binding’ instruments

and they have mobilized the international community.62

As Bagshaw says, the Guiding Principles fall into the

first category of human rights soft law established by

Shelton:63 they are not adopted in a treaty form but ad-

dressed to the international community or to member-

ship of the adopting institution or organization instead

of being recommendations and comments of supervi-

sory organs, jurisprudence, decisions or resolutions.

Bagshaw analyzes the strengths of the Guiding Princi-

ples explaining how they restated the existing general

norms in relation to the areas the Compilation recom-

61 As it has been explained, they are created from the already existing general principles and norms.

62 The General Assembly has recognized the GPs ‘as an impor-tant framework for the protection of IDPs’ in a Resolution adopted after the 2005 World Summit. UNGA Res 60/1 (2005) UN Doc A/Res/60/1 at Principle 132.

63 See Shelton, ‘Law, Non-Law and the Problem of ‘Soft-Law’, I D. Shelton ed., Commitment and Compliance: The Role of Non-Binding Norms in the Interna-tional Legal System 13 (2000).

30

mended: discrimination, protection of live, gender-

specific violence, detention, the use of human shields,

forced recruitment, subsistence needs, medical care,

free movement, family related needs, the use of one’s

own language, religion, work, education, association,

political participations and the need for access to in-

ternational assistance.

Regarding gender-specific violation, for example, he

comments that some provisions exist prohibiting it, but

that a future international instrument would be neces-

sary to address these violations.64 In accordance with

this, Principle 11(2) claims that IDPs shall be protected

in particular against:

(a) Rape, mutilation, torture, cruel, inhuman or degrading

treatment or punishment, and other outrages upon per-

sonal dignity, such as acts of gender-specific violence,

forced prostitution and any form of indecent assault;

(b) Slavery or any contemporary form of slavery, such as

sale into marriage, sexual exploitation, or forced labor of

children; and

(…)

Threats and incitement to commit any of the foregoing

acts shall be prohibited.

Principle 19(2) claims for especial attention to the

health needs of women, including access to female

health care providers and services, such as reproduc-

tive health care, as well as appropriate counseling for

victims of sexual and other abuses.

There is no explicit prohibition of discrimination against

IDPs. However, the compilation notes that there exist

64 He named the Common Ar-ticle 3, as well as Article 2 (1) of Additional Protocol II to the GC which both prohibit ‘any adverse distinction founded on… sex’. Protocol II explicitly prohibits ‘outrages upon personal dignity’ including ‘rape, enforced prosti-tution and any form of incident assault’. Bagshaw, Developing a Normative Framework for the Protection of Internally Displaced Persons, at 105.


31

several provisions in international and regional treaties

claiming for the applicability of rights and freedoms

without discrimination. Article 26 of the Covenant on

Civil and Political Rights is held to be the most exten-

sive guarantee:

All persons are equal before the law and are entitled with-

out any discrimination to the equal protection of the law. In

this respect, the law shall prohibit any discrimination and

guarantee to all persons equal and effective protection

against discrimination on any ground such as race, color,

sex, language, religion, political or other opinion, national

or social origin, property, birth or other status.

The compilation considers that the term ‘other status’

was meant to be interpreted broadly and has come to

include ‘nationality and disability and reasonably in-

cludes youth and old-age’,65 and therefore the compila-

tion calls for a binding clause addressing discrimination

against IDPs based on their status as such and for an

explicit statement in a future international instrument.

Thus, Principle 1(1) notes:

1. Internally displaced persons shall enjoy, in full equality, the

same rights and freedoms under international and domes-

tic law as do other persons in their country. They shall not

be discriminated against in the enjoyment of any rights and

freedoms on the ground that they are internally displaced.

However, it could be argued that applying the term

‘other status’ to the IDP is somewhat excessive. Nev-

ertheless, as Bagshaw explains citing Nowak, the de-

cisive question is whether specific distinction between

various persons or groups of persons [between inter-

nally and non-internally displaced persons] is to be

considered discriminatory. (…).6665 E/CN.4/1996/52/Add.2 para. 52

66 Novak, M, CCPR Commentary 473 (1993).


Moreover, the GPs present other weaknesses. Lavoyer67

said that that they do not necessarily provide the same

level of protection as that afforded by the various bodies of

International law. Phuong analyzes and criticizes the fact

that minorities are only mentioned once in the document,

in principle 9, even if a prohibition of ‘ethnic cleansing’ is

made in Principle 6(2)(a). She contends that more specific

and stronger provisions could have been included, as the

protection of minorities is considered to be essential in

the protection against displacement. Phuong also argues

that the provisions do not mention the issue of safe areas,

and therefore neither their implications on the freedom of

movement within the country and on their right to asylum.

Finally, she talks about the significant weakness that the

fact that they are not a binding instrument can represent.

However, she also argues that it has permitted a most

comprehensive study of IDPs and that numerous rules

that they contain, as Lavoyer already said, ‘form part of

treaty law and that are therefore legally binding’.

Nevertheless, even if some discussion can be present-

ed about the interpretation of the law by the Guiding

Principles in some provisions, it has to be highlighted

that GPs are based on existing law but that they also

contain developed ‘rules’, also legitimate and that con-

tribute to the protection and assistance of IDPs.

As it has been said ‘their strongest point is that they

address a wide range of needs arising from diverse

situations.’68

Moreover, they constitute a legal framework around

which to coordinate the efforts of several actors en-

gaged in them.69 Moreover, the treaty law contained

in them can not be diminished, constituting a binding

legal base for the assistance and protection of IDPs.

Furthermore, they take now part of national law, mak-

ing possible its implementation. 70

67 J.P., Lavoyer, ‘Refugees and Internal Displacement: A Few Comments on the Contribution of International Humanitarian Law’ (1998) 324 International Re-view if the Red Cross 467.

68 Lavoyer, ‘The Guiding Prin-ciples on Internal Displacement’, at p. 471. Phuong said that the GPs constituted an ambitious in-strument as to the protection of IDPs as they tried to cover all of its aspects.

69 See for example Zard, Mon-ette, ‘Toward a Comprehensive Approach to Protecting Refugees and the Internally Displaced’ In Fitzpatrick, Joan, Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons.

70 As Entwisle explains three major factors led to their suc-cess: their form and content, the potential linkage to humanitarian intervention, and self-interest and identity. As he said, they are clear and specific, well organized, they place existing human rights and humanitarian legal norms within the context of internal displace-ment, appealing to widely shared conceptions of basic human dig-nity; a global debate surrounding humanitarian intervention was mounting at the time they were created; and States initially may have adopted them out of fi-nancial or political self-interest because they viewed the non-binding norms as unthreatening. Entwisle, ‘Tracing cascades: the normative development of the U.N. Guiding Principles on Inter-nal Displacement’, at 379.

33

national protection: The incorporation of the Guiding Principles in national le-gislation

As Wyndham explains,71 the Guiding Principles were

introduced into the UN in 1998, and several laws and

policies in at least 16 countries have been developed

from them as, as it has already been said, the obliga-

tions of national authorities and non-state actors have

been set. Principle 3(1) of the GPs states that ‘national

authorities have the primary duty and responsibility to

provide protection and humanitarian assistance to IDPs

within their jurisdiction’. Therefore, and as the Brooking

Institution as well as the Secretary-General have said,72

all states have the duty to develop a plan of action or a

national legal policy on IDPs.73

The Guiding Principles have gained substantial interna-

tional acceptance and moral authority over the years.

They have been described as ‘an important tool’ and

‘standard’ in several Resolutions of the Commission

on Human Rights and in the General Assembly.74 The

UN Secretary-General’s report ‘In Larger Freedom’ of

March 2005 urged Member States to accept the Guid-

ing Principles as ‘the basic international norm for pro-

tection’ of IDPs.75

Heads of state and governments also referred to them as

‘an important international framework for the IDPs’ in the

World Summit in September 2005.76 The Representa-

tive of the Secretary-General referred to them as ‘useful

points of reference in drafting national legislation rele-

vant to the internationally displaced’.77 However, as they

are not binding instruments, the most effective way to

ensure state compliance with the GPs is to incorporate

them into the domestic legislative framework of states.

71 Wyndham, Jessica, ‘A Devel-oping Trend: Laws and Policies on Internal Displacement’ (2006) 14 Hum. Rts. Br. 7, at 9.

72 Brookings-Bern Project on Internal Displacement.

73 Secretary General Kofi An-nan called on Member States to ‘promote the adoption [of the GP] through national legislation’. Report of the Secretary-General In Larger Freedom, Toward De-velopment, Security and Human Rights for All, at p. 210.

74 Commission on Human Rights, P 7, U.N. Doc. E/CN.4/2005/L.60, (April 14, 2005). UNGA Res. 60/168, U.N. Doc. A/RES/60/168, (March 7, 2006).

75 Report of the Secretary-Gen-eral in Larger Freedom: Toward Development, Security and Hu-man Rights for All.

76 G.A. Res. 60/L.1, at p. 132, U.N. Doc. A/60/L.1, (Sept. 15, 2005).

77 Guiding Principles on Inter-nal Displacement, U.N. Doc E/CN.4/1998/53Add.2, 11th Feb-ruary 1998, at p. 24.


A growing number of national governments and gov-

ernmental organizations began to express their com-

mitment to implementing the GPs through national

legislation, and several countries have already devel-

oped laws, policies, plans, decrees, frameworks and

protocols in order to regulate some or all aspects of

IDPs.78 The translating of international standards into

concrete legal or policy provisions at the national level

present some challenges and difficulties. The policies

and laws developed, with the help of the framework

for national responsibility of the Brookings Institution,79

can be grouped into four main models.

78 Angola, Burundi, Liberia, and Uganda in Africa; India and Sri Lanka in Asia; Azerbaijan, Bos-nia and Herzegovina, Georgia, Russia, Serbia, and Turkey in Europe; and Colombia and Peru in the Americas. Only the laws of Azerbaijan, Colombia, and Georgia pre-date the Guiding Principles. The remainder have been developed and adopted since 1998. Afghanistan, Nepal, Nigeria, and the Philippines are in the process of drafting laws and policies.

79 This framework presents 12 key steps that govern ments can take to ensure their responsibili-ties to IDPs: 1) Prevent Displace-ment and Minimize its Adverse Effects, 2) Raise National Aware-ness of the Problem, 3) Collect Data on the Number and Condi-tions of IDPs, 4) Support Training on the Rights of IDPs, 5) Create a Legal Framework for Upholding the Rights of IDPs, 6) Develop a National Policy on Internal Displacement, 7) Designate an Institutional Focal Point on IDPs, 8) Encourage National Human Rights Institutions to Integrate Internal Displacement into their Work, 9) Ensure the Participation of IDPs in Decision-Making, 10) Support Durable Solutions, 11) Allocate Adequate Resources to the Problem, 12) Cooperate with the International Commu-nity when National Capacity is Insufficient. Collectively, these measures represent a compre-hensive response to the problem of IDPs, and specifically to those who rely on their governments to protect and assist them.

35

80 An example of this model is the Instrument of Adoption of Liberia, as adopted the GPs in November 2004 as guidance for the protec-tion, dignity and rights of IDPs. This model however, does adopt the GPs as guidance more than as a banding instrument.

81 The National Policy on Resettle-ment and Rehabilitation for Project Affected Families of 2003 of India, for example, addresses displace-ment only as a result of develop-ment projects. The Angolan Norms on the Resettlement of the Internal-ly Displaced Populations address only the stage of return and reset-tlement. Laws and policies that ad-dress only return and resettlement have also been adopted in Azer-baijan, Bosnia and Herzegovina, Colombia, Nepal, and Serbia.

82 An example is the Turkish Law on the Compensation of Dam-ages that Occurred due to Terror and the Fight Against Terrorism, as well as the United States Hur-ricane Education Recovery Act, developed following Hurricane Katrina.

83 The Colombian law is a close comprehensive law on IDs even if it does not address displace-ment caused by natural disas-ters or developed projects. The Ugandan National Policy for Internally Displaced Persons is another example, even if it does not specifically address preven-tion or solutions at durable return or resettlement.

84 No mechanism is, for exam-ple, provided to monitor respon-sibilities, as well as no descrip-tion of IDPs or the identification of funding resources.

The first model is a brief instrument adopting the GPs,80

the second is a law or policy developed to address a

specific cause or stage of displacement,81 the third is

a law or policy developed to protect a specific right

of the IDPs,82 and the fourth is a comprehensive law

or policy addressing all causes and stages of internal

displacement.83 The first model, however, adopts the

GPs as guide more than as a banding instrument, and

therefore it denies the development and effectiveness

of a possibly more adapted law. The second model has

addressed, with the exception of the India example,

return and resettlement. The second model as well as

the third model are always developed in response to

existing situations of displacement, and are therefore

a reflection of challenges faced in protecting IDPs.

However, their scope is limited and in practice many of

these laws and policies fail to address substantive is-

sues that could contribute to their effective implemen-

tation.84 The fourth model is not yet common, even if

some examples exist.

However, in practice, all these models present gaps

referring to the definition of IDPs, the identification of

institutional responsibilities for implementing and mon-

itoring the instrument, the inclusion of consultation and

participation mechanisms for IDPs, the establishment

of measures for addressing long-term and resettlement

programs, as well as of supporting host communities

and families and of combating discrimination against

IDPs. Some of the laws and policies that include a defi-

nition of IDPs have included refugee provisions making

it difficult to address the specific needs of both. The

lack of an implementing and monitoring instrument by

an organization produces inefficiency.


Nevertheless, this is not very common and nowadays

there is the ‘National Responsibility Framework’ devel-

oped by the Brookings-Bern Project in order to help

governments fulfill their responsibilities, which strongly

recommended an ‘institutional focal point’ to lead the

process.85

The Guiding Principles recommended consultation and

participation mechanisms for IDPs in their principles

18(3) and 29(2), as did the Report of the Secretary-

General ‘Protection of IDPs in Situations of Natural

Disaster.’86 Some countries have applied these princi-

ples, which, although rarely, threaten to undermine the

policies’ effectiveness.87 The political will, but also the

setting of priorities and practical considerations, are

key issues in the establishment of comprehensive poli-

cies protecting IDPs. Therefore, the Secretary-General

proposed in 2005 ‘to convene a series of consultative

meetings ... with experts, lawmakers, and IDP advo-

cates, with the goal of clarifying in detail how domestic

law should contribute to the protection of IDPs.’

The Brookings-Bern database of existing laws and

polices is also assisting legislators and policymakers,

and it will be even more useful with its planned expan-

sion to include all documents and statements of inter-

national, regional, and national authorities concerning

IDPs’ rights and the GPs.

85 Even if Azerbaijan’s law on forcible displaced is weak, in Georgia, Ugandan and Nepal, for example, the identification of an institution monitoring system is provided. In Georgia the respon-sibility falls to the Ministry of Refugees and Accommodation, in Uganda to the Human Rights Commission, and in Nepal to a governmental monitory system.

86 Protection of Internally Dis-placed Persons in Situations of Natural Disaster: A Working Visit to Asia by the Representative of the United Nations Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kalin, 27 February to 5 March 2005.

87 The Ugandan policy requires the participation and consulta-tion of IDPs in the process. The Angolan norms of IDP popula-tions also require their participa-tion, even if not as much clarity is provided.

37

The failure of national and internatio-nal protection

State sovereignty

Even if national obligations exist protecting populations,

and even if the Guiding Principles have been adopted in

some national legislation, the population is not always

protected and internal displacement situations continue

to appear. Therefore, the international community, and

more precisely the Security Council, sometimes inter-

venes in order to address these situations.

These interventions have been called ‘humanitarian

interventions’, as they are supposed to address the

defense of human beings. However, intervention has

been a controversial issue throughout history88 and it is

still the subject of an ongoing debate. On one side it is

still criticized as undermining the state’s sovereignty as

well as being used for means other than the defense of

the populations.89 On the other side humanitarian in-

tervention90 is considered to be an essential practice

in human rights protection and therefore a moral ob-

ligation of the international community.91 It can also

give answer to the ‘French doctors’ logic supported

by Doctors Without Borders and the ICRC.92 However,

even if the conception of humanitarian intervention as

an essential practice is growing, we could argue that

international law is not clear in this as some contradic-

tions due to national fears can be found in international

legislation.93

Nevertheless, in reference to IDP situations, the SC has

the power to invoke an intervention if a situation con-

stitutes a ‘threat to international peace and security’.

As Lee said, this situation should not be deemed to

88 Before the IIWW Intervention was considered to be an attempt to national territorial and equal sovereignty. However after the IIWW intervention was started to being seen for some actors as a responsibility more than an attempt.

89 During the Cold War interven-tion was used as a political and economic instrument. From then, the interventions have been more orientated to peace process. However, it can still be argued that the political and economic interest has been also present after the Cold War. E.g.) Panama in 1989, Persian Golf (1991), Chechen (1994), Iraq (2000), Af-ghanistan (2001).

90 See for example Kouchner, Bernard et Bettati, Mario: devoir du droit d’ingérence (Ed. Denoël, Paris, 1987).

91 International Development Research Center, Rapport of the International Commission on In-tervention and State Sovereignty (December 2002),December 2001.

92 This theory refuses the state’s borders in defense of the free-dom to protect civil society.

93 Article 2 of Chapter I of UN Charter defends the equal sov-ereignty of all Member States. However, as it as already said, the International Commission on Intervention and State Sovereign-ty wrote about the responsibility of protection, notion also used in the General assembly (X birthday of Rwanda genocide) General Assembly Resolutions defend-ing humanitarian intervention have also been created. UNGA Res 43/131 (1998) UN Doc A/RES/43/131, UNGA Res 45/100 (1990) UN Doc A/RES/45/100, UNGA Res 46/182 (1991) UN Doc A/RES/46/182.


compromise national sovereignty or constitute inter-

vention in the internal affairs of a State. The U.N. Group

of Governmental Experts on International Co-operation

to Avert New Flows of Refugees confirmed this by say-

ing that the massive displacement of people is capable

of ‘endangering international peace and security’ and

that prevention is ‘a matter of serious concern to the

international community as a whole’. However, sover-

eignty is still a concept defended by the states that

makes international protection difficult for IDPs. More-

over, as explained below, international protection still

has a plenty of room for development.

Achievements and weaknesses at the international –and regional– level

As Bagshaw and Kälin explain, the compilation of ex-

isting legal norms that constitute the basis of the Prin-

ciples [the compilation] considers the extent to which

international standards address the needs of the in-

ternally displaced within three situations: situations of

tensions and disturbances, or disasters; situations of

non-international armed conflict; and situations of in-

ternational armed conflict.

When IDPs are in a situation of tensions and distur-

bance, humanitarian law is inapplicable as we are not

referring to armed conflicts. These persons should be

protected by international human rights law. However,

it is also true that human rights treaties contain limita-

tion and derogation clauses, allowing the states parties

to restrict the exercise of many of the rights in order

to protect other rights, and in certain circumstances,

respectively.94

94 The establishment of non-derogable rights has also to be named. Some fundamental rights as the right to live, the prohibition of the torture, cruel and inhu-mane or degrading treatment are not subjected to derogations.

39

When IDPs are in a situation of armed conflict, human

rights remain applicable when there are no limitations

or derogations, and only for one part of the conflict.95

However, in these situations, humanitarian law also

applies. Additional Protocol II and common article 3

apply in situations of non-international armed conflict,

imposing the legal obligation on all the parties to treat

the persons not taking – or no longer taking – an active

part in the conflict ‘humanely’. In situations of interna-

tional conflicts, all four Geneva Conventions, Additional

Protocol I, and customary laws of war apply.

However, and even if most of the provisions of the Ge-

neva Conventions are not applicable to persons dis-

placed within their country, the compilation defends the

applicability of the IV Geneva Convention and Part V of

Additional Protocol I. Nevertheless, it notes that only

a few states have ratified Protocol I. Moreover, when

a specific right has not been articulated to ensure the

implementation of a general existing norm in areas of

specific need for IDPs, or when no explicit norms exist

to address a need of the internally displaced, IDPs are

not protected. Therefore, the Principles recommended

‘a future international instrument on the protection of

internally displaced’.96

The compilation also studied the protection of IDPs

against arbitrary displacement, which was only found in

international humanitarian law and in the law relating to

indigenous peoples,97 only implicit in some provisions,

and that it presented an ambiguous understanding in in-

ternational law.98 Therefore, it recommends that the right

to be protected against arbitrary displacement should be

well defined. However, and even if the protection to IDPs

is often not fully provided in practical terms, we are going

to study in more detail the provisions and mechanisms in

human rights and humanitarian law dealing with it.

95 Human rights law only applies to the government and its agen-cies as only States can be par-ties of human rights treaties.

96 E/CN.4/1996/52/Add. 2, para 413.

97 Ibid., para. 84.

98 Ibid., para 85.


Even if IDPs are entitled to enjoy the same rights and

freedoms as the rest of the country’s citizens, present hu-

man rights law does not contain specific guarantees for

IDPs. However, ‘the strict observation and full realization

of all human rights for everyone is often the best method

of preventing displacement.’99 Human rights law applies

when displacement is caused by natural disasters and

it also contribute to the protection of the displacement

as such when there are widespread human rights viola-

tions but not amounting to a non-international armed

conflict. Moreover, during armed conflict, human rights

law remains applicable as the State concerned has not

legitimately derogated from relevant human rights con-

ventions. Where humanitarian law does not fully apply,

it is particular important.100 As Lee mentioned,101 the for-

mer President of the International Court of Justice, the

late Sir Humphrey Waldock, said that human rights are

‘rights which attach to all human beings equally, what-

ever their nationality’. All universal and regional human

rights instruments imply equal rights for all individuals,

using the terms ‘all human beings’, ‘everyone’, ‘no-one’,

or ‘all’. Therefore, IDPs must also be protected.

Human rights violations occur before displacement,

during flight, and after the victim has found refuge or

has returned. Therefore, human rights law protects

IDPs in different ways, from the Charter as well as from

the Treaty Body System.

The Charter Body system

Even if the UN Charter organs are subject to the political

will, they are useful tools, not only because they apply to

all UN member states, but also because they generally

do not require the exhaustion of domestic remedies,102

99 Zard, Monette, ‘Toward a Comprehensive Approach to Protecting Refugees and the In-ternally Displaced’.

100 Humanitarian law does not fully apply when a non-armed conflict takes place in a country which has not ratified Protocol II or when in inter-State armed conflict, according to article 4 of the Fourth Geneva Convention, humanitarian law only protect non-nationals citizens.

101 Lee, L.T, ‘The Refugee Con-vention and Internally Displaced Persons’ (2001) Int. J Refugee Law, at 364.

102 Only the 1503 procedure re-quires the exhaustion of domes-tic remedies.

41

they have great political influence on countries help-

ing address the problems, and because they may be

used to make system-wide changes and address seri-

ous violations of human rights. The establishment of a

Special Rapporteur (SR) on IDPs,103 as a result of the

establishment of a thematic procedure,104 is useful as

he reports the most accurate picture possible of an IDP

situation to the Human Rights Council as well as to the

General Assembly. The Special Rapporteurs on country

situations105 also report on IDPs. 106 The reports are the

result of extensive study and extensive contribution of

NGOs and IGOs, individuals and governments. Urgent

appeals or letters of allegation are sent to the govern-

ments asking for clarification.107

However, the effectiveness of the mandates depends

on the nature and approach of the mandate holder and

his or her staff members, and any enforcement, on the

political bodies; the Human Rights Council or the Gen-

eral Assembly.108

103 IDPs have a Special Rapporteur (SR) since 1997 but not a working group.

104 The Special Rapporteur engages governments in dialogue, carries fact-finding visits, analyzes practice and patterns and research themes and develop standards.

105 The Special Rapporteurs for oth-er issues, such as the Special Rap-porteur on Independence o Judges and Lawyers, the Special Rapporteur on Violence Against women, the Spe-cial Rapporteur on Contemporary Forms of Racism, Racial Discrimina-tion, Xenophobia and Related Intoler-ance, the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, the Special Rapporteur on Children in Armed Conflict, etc. have also contribute to the protection and promotion of IDPs after petition of the SR on IDPs. UN-CHR Res 68 (1994) UN Doc E/CN.4/ RES/1994/68. However, the Rappor-teurs have not always access to the countries as sometimes they are not allowed to enter in.

106 It as to be said however, that the submission of communications that some special Rapporteurs use as a working method requires a le-gal knowledge as it has to be known which procedures are available and what kind of information each proce-dures is willing to consider. Therefore, even if there are a number of guide-lines, these are complex mechanisms not accessible to poor educated citizens.

107 In 2006, more than 1,100 com-munications were sent to Govern-ments in 143 countries.

108 There is an additional mechanism to the thematic and the country man-dates: the 1503 procedure. This pro-cedure examines complains of gross violations of human rights in a country in order to identify patterns of gross violation. It is different to the others as it is confidential and those who summit information are not informed of the out-come. However, a state can be made to account for and respond t individual allegations. In exceptionally serious cases, the HRC may choose to trans-fer the situation to a public procedure, possibly including the appointment of a Special Rapporteur. It confidential-ity makes difficult to examine if it has been relevant to IDPs. Moreover, and even if using this procedure could be useful to IDPs when large number of violations are taking place, complaints would be referred to the SRSG on IDPs as a more successful response is likely to be obtain by him.

42

Moreover, these bodies do not operate quickly ad-

dressing human rights violations. Nevertheless, public

condemnation and the publicity of the findings and the

recommendations made are useful in the protection of

human rights as they represent an important pressure.

Moreover, the recent charter-body reform can be seen

as an improvement in the protection and promotion

of human rights as some changes have been intro-

duced.109 Even if it is still early to evaluate the work of

the new Human Rights Council, it is necessary to have

some hope. O’Flaherty and Brien talk about a possible

overlap between the treaty and the charter system,

referring to the neglected consideration relationship

between the treaty body system and the UN Human

Rights Council.110 Due to the fact that some gaps exist,

that we cannot refer to a perfect system and that poli-

tics play an important role in it, advocacy and lobbing

are essential mechanisms also provided in the Charter-

based mechanisms that have to be used in order to

protect and promote human rights.111 A good lobbying

strategy may produce tangible outcomes like resolu-

tions on country-specific situations and on thematic

topics, appointments of Special Rapporteurs as it is

the case of IDPs.112


109 They are meeting more often, there won’t be de facto-permanent memberships, a uni-versal periodic review is being introduced, etc. However, the sub-commission and the expert work do not exist anymore as a political group has been created.

110 As they suggest, two distinct dialogues with States within the UN human rights system would be more positive for the advance-ment of human rights protection: the treaty monitoring process would provide the platform of comprehensive information con-cerning States’ compliance with their human rights treaty obliga-tions, and producing recommen-dations for its enhancement. The Council would focus on issues of implementation, drawing on its membership’s diverse expe-rience, including of good and promising practices.

111 NGOs can participate formally (through oral or writ-ten interventions) or informally (through any number of lobbying tactics in the meeting rooms out-side the formal Council session, in the corridors, over lunch, etc.). NGOs must obtain consultative status in order to have access to UN bodies. They may apply for one of the three categories of consultative status (General, Special or Roster) and therefore they will have different privileges and obligations.

112 However, it also has to be said that the complexity of the system as well as the lack of re-sources of NGOs make the task difficult.

43

The Treaty Body system

The treaty body system experienced a huge quantita-

tive expansion, particularly between 1979 and 1989,113

that provided seven human rights conventions as

well as several optional protocols that several coun-

tries have ratified.114 Several monitoring bodies have

been established.115 The conventions and protocols

are not legally binding, and the treaty bodies are not

judicial institutions. However, they have the potential

to be useful to IDP protection as by ratifying the con-

ventions and/or protocols, the countries commit to

their provisions and in case of a violation, the country

is itself subject to international political pressure. As

Buergenthal said, the normative findings of the treaty

bodies have legal significance, as reference to them in

international and domestic judicial decisions has been

made and they may be viewed as creating an entire

body of customary international human rights law. 116

Different mechanisms exist in the treaty body system

for determining human rights violations: the individual

complaint mechanism and forms of output such as

general comments and concluding observations.

113 As O’Flaherty and Brien said, there were a multiplication in the number of instruments, bodies and States Parties, establish-ment of additional procedures, sophistication in the treaty bod-ies; an enlargement of the UN Human Rights Programme; a creation of regional organization, at 146.

114 Seven conventions (ICE-SCR International Covenant on Economic, Social and Cul-tural Rights, ICCPR International Covenant on Civil and Politi-cal Rights, ICERD International Convention on the Elimination of All Forms of Racial Discrimi-nation, CEDAW Convention on the Elimination of Discrimination against Women, CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment., CRC Conven-tion on the Rights of the child, ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Mem-bers of Their Families.) and two more not yet into force have been established ( International Convention for the Protection of All Persons from Enforced Disap-pearance and Convention on the Rights of Persons with Disabili-ties); as well as Six Optional Pro-tocols (ICCPR-OP1, ICCPR-OP2 OP-CEDAW, OP-CRC-AC, OP-CRC-SC, OP-CAT) and another one not yet into forced (Optional Protocol to the Convention on the Rights of Persons with Dis-abilities).

115 CERD Committee on the Elimination of Racial Discrimina-tion, HRC Human Rights Com-mittee, CESCR Committee on Economic, Social and Cultural Rights, CEDAW Committee on the Elimination of Discrimination against Women, CAT Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CRC Committee on the Rights of the Child, CMW Committee on Migrant Workers

116 Buergenthal, Tomas, ‘The Evolving International Human Rights System’ (2006) 100 A.J.I.L. 783, at 790.


Four of the human rights treaties provide an individual

complaint mechanism: the 1966 International Cov-

enant on Civil and Political Rights (ICCPR),117 the 1984

Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (The Torture

Convention),118 the 1965 International Convention on

the Elimination of All Forms of Racial Discrimination

(Racial Discrimination Convention),119 and the 1979

Convention on the Elimination of All Forms of Dis-

crimination Against Women (Woman’s Convention),120

whose 1999 Optional Protocol entered into force in

December 2000 (CEDAW OP).121 Therefore, IDPs who

have suffered human rights violations from the state

can submit individual complaints to the independent

committee of experts established by each treaty act-

ing as a monitoring body. These committees will ad-

vise the concerned State to be in compliance with the

treaty in case a human rights violation has been found

by them, making the international community aware of

this and therefore pressuring the country to change its

acts and/or policies.

The general comments are the committee’s authorita-

tive interpretations of the treaty’s provisions and the

concluding observations are the conclusions that the

Committees make after reviewing states’ periodic re-

ports. Many general comments and concluding obser-

vations related to IDPs have been elaborated by the

Committees.

As the compilation of the general comments of the Hu-

man Rights Committee said, State parties also “rec-

ognize the right of everyone to an adequate standard

of living for himself and his family, including adequate

food, clothing and housing, and to the continuous im-

provement of living conditions” in article 11 (1) of the

117 This is the treaty that con-tains the widest range of protect-ing rights: the right to live (Art. 6), to freedom from torture (…) (Art. 7), to liberty and security of the person (Art. 9), to freedom on arbitrary detention (Art. 9), to be treated with humanity and dig-nity when detained (Art. 10), free-dom from arbitrary expulsion rt. 13), to non-interference with the family (Art. 17), to equal protec-tion with the law (Art. 26), to the enjoyment of their own culture (Art. 27), etc.

118 This Treaty incites the state to ensure a prompt and impartial investigation where there is a reasonable ground to believe that an act of torture has been com-mitted (Art.12), and gives IDPs rights such as the right to com-plaint to a competent authority and have the case promptly and impartially examined (Art.13), the right of torture victims to redress and adequate compensation (…) (Art. 14), the prohibition on the use as evidence of any state-ment made as a result of torture (Art. 15).

119 This treaty incites the State to protect citizens from racist propaganda (Art.4), from racial discrimination and to equal-ity before the law (Art.5): right to equal treatment before tribunals and other justice organs, right to own property, to freedom of opinion and expression, to hous-ing, to education, etc.

120 This Convention protects women from any act or practice from public authorities (Art. 2(d)), from any person, organization, or enterprise (Art. 2(e)), health care (Art. 12), ensure equality before law (Art.15), marriage and family relations Art. 16), etc.

121 The Optional Protocol pro-vides a forum for female forced migrants seeking redress for hu-man rights violations grounded in sex discrimination.

45

Covenant. Since 1979, the Committee has been work-

ing on the defense of this right.122 This right is consid-

ered to be of central importance for the enjoyment of

all economic, social and cultural rights. The Committee

stated that ‘although the practice of forced evictions

might appear to occur primarily in heavily populated

urban areas, it also takes place in connection with

forced population transfers, internal displacement,

forced relocations in the context of armed conflict, and

mass exoduses and refugee movements.’123 Never-

theless, as the compilation also says, although these

statements are important, they leave open one of the

most critical issues, namely that of determining the cir-

cumstances under which forced eviction is permissible

and of spelling out the types of protection required to

ensure respect for the relevant provisions of the Cov-

enant. Moreover, even if the non-discrimination pro-

visions of articles 2.2 and 3 of the Covenant impose

an additional obligation upon Governments to ensure

that, where evictions do occur, appropriate measures

are taken to ensure that no form of discrimination is

involved, discrimination sometimes takes place. Article

11, which should be seen as the right to live some-

where in security, peace and dignity, and which is

linked to other rights,124 is not developed everywhere

in the world.

122 Since 1979, the Committee and its predecessors have ex-amined 75 reports dealing with the right to adequate housing. The Committee has also de-voted a day of general discus-sion to the issue at each of its third (see E/1989/22, para. 312) and fourth sessions (E/1990/23, paras. 281-285). In addition, the Committee has taken care-ful note of information gener-ated by the International Year of Shelter for the Homeless (1987) including the Global Strategy for Shelter to the Year 2000 adopted by the General Assembly in its resolution 42/191 of 11 Decem-ber 1987. The Committee has also reviewed relevant reports and other documentation of the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The committee has recommended to be consistent with the provision of domestic legal remedies: (a) legal appeals aimed at prevent-ing planned evictions or demo-litions through the issuance of court-ordered injunctions; (b) le-gal procedures seeking compen-sation following an illegal evic-tion; (c) complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; (d) allegations of any form of dis-crimination in the allocation and availability of access to housing; and (e) complaints against land-lords concerning unhealthy or inadequate housing conditions. In its general comment No. 4 (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protec-tion against forced eviction, ha-rassment and other threats.

123 CESCR, General Comment 7. The Right to adequate housing (Art.11.1): forced evictions 1997.

124 Right to freedom of expres-sion, to freedom of association, to freedom of residence and the right to participate in public decision-making.


Forced eviction creates Internal Displaced situa-

tions and does not allow this right to be enjoyed, as

IDPs had to leave their houses and many of them

do not have access to an adequate housing,125

or to adequate food or clothing.126 Moreover, as

the Committee as well as the Special Rapporteur

stated, vulnerable individuals and groups all suffer

disproportionately from the practice of forced evic-

tion.127 As for example the Committee on the Rights

of the Child says in its concluding observations for

Azerbaijan, the assurance of adequate housing for

children is one of the efforts which currently needs

to be strengthened by the State.128 Otherwise, legal

remedies or procedures should be provided to those

who are affected by eviction orders.129 However, legal

remedies are not always satisfactorily provided.130

The International Covenant on Economic, Social

and Cultural Rights also recognizes in article 11.2

that immediate and urgent steps may be needed

to ensure “the fundamental right to freedom from

hunger and malnutrition”. The Committee consid-

ers that the human right to adequate food is also

of crucial importance for the enjoyment of all rights

and that it is indivisibly linked to the inherent dignity

of the human person.

125 ‘Adequate housing’ includes, accord-ing to the compilation…, legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, good location, cultural adequacy...

126 Mr. Deng was for example particularly impressed with the attitude and efforts made by the Government of Sri Lanka to provide food aid to civilians, even in areas controlled by rebel forces; see Internally Displaced Persons, Study of the Represen-tative of the Secretary-General, Mr. Francis Deng, U.N.DOC E/CN.4/1994/44, para. 55. Moreover, in 2001, the World Food Pro-gramme adopted a framework for action entitled “Reaching People in Situations of Displacement” (WFP/EB.A/2001/4-C). However, IDPs continue to be frequently deprived of food, as well as water, sanita-tion, clothing, shelter, and health services. See for example Report 2007, at p.64. See also E/CN.4/2005/84, para. 40, as well as the. Committee on Economic, Social and Cultural Rights, Concluding Observations/Comments, E/C.12/1/Add.74 (2001) Co-lombia, para 22.

127 The Special Rapporteur also high-lighted the absence of discrimination of IDPs for reasons related to their displace-ment as a legal protection that must be provided. See U.N.DOC. A/HRC/4/38 (2007). Concerning the link between dis-crimination and vulnerable groups see the compilation. See also for example Internally Displaced Persons, Report of the Representative of the Secretary-General, Mr. Walter Kälin, U.N.DOC. E/CN.4/2005/84 (2005), at p. 17, as well as the E/C.12/1/Add.74, para 11.

128 Committee on the Rights of the Child, Concluding observations CRC/C/AZE/CO/2, 41st Session (2006) Azerbai-jan, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, para 60 (a).

129 See article 2.3 of the International Covenant on Civil and Political Rights. As the Report… says, ‘hundreds of thou-sands of people displaced by the Indian Ocean tsunami at the end of 2004 contin-ued to suffer from its tragic consequences with inadequate housing and lack of ac-cess to land’. Displaced people in former conflict areas such as Central Sulawesi, Maluku and North Maluku remain in need of housing.

130 In Russia for example, from 2003 to the end of 2006, approximately 46,000 citizens (some of them IDPs) received compensation for lost housing and prop-erty. However recipients often did not re-ceive the full entitlement, and compensa-tion levels are not commensurate with the actual cost of construction materials. See UN.DOC. A/HRC/4/38 (2007).

47

However, as they said, a disturbing gap still exists be-

tween the standards set in article 11 of the Covenant

and the situation prevailing in many parts of the world.

Many people throughout the world, most of them in de-

veloping countries, are chronically hungry; millions of

people are suffering from famine as the result of natu-

ral disasters, the increasing incidence of civil strife and

wars in some regions, and the use of food as a politi-

cal weapon.131 As the Internal Displacement Monitoring

Center (IDMC) said in its Report about IDPs in Liberia,

IDPs repeatedly displaced from 1999 suffer greatly

from the lack of food in one of the most food-insecure

countries.132 Lack of food, as well as lack of shelter, are

also the main problems concerning IDPs in Sri Lanka.133

Education is also considered ‘both a human right in

itself and an indispensable means of realizing other hu-

man rights. As an empowerment right, education is the

primary vehicle by which economically and socially mar-

ginalized adults and children can lift themselves out of

poverty and obtain the means to participate fully in their

communities.’134 Article 13 and 14 contain the right to

education, Article 13 being the longest provision in the

Covenant on economic, social, and cultural rights. Arti-

cle 13 (2) defines the right to receive an education, with

its features: availability, accessibility, acceptability, and

adaptability. The right to primary, secondary and high

education is specifically defined, to a school system,

adequate fellowship system and material conditions

of teaching staff, as well as to educational freedom.

‘State parties have immediate obligations in relation to

the right to education, such as the “guarantee” that the

right “will be exercised without discrimination of any

kind” (art. 2 (2)) and the obligation “to take steps” (art. 2

(1)) toward the full realization of article 13.135 Such steps

must be “deliberate, concrete and targeted” toward the

131 See Committee on social, Economic and Cultural Rights, General comment No. 12: The right to adequate food (art. 11) Twentieth session (1999).

132 Internal Displacement Moni-toring Centre, ‘Liberia: Focus for IDP Returnees Moves from Conflict to Development’, (2007), at 10.

133 Information from IDP News Alert of Human Rights Education Associates (March 2007).

134 Committee on Economic, Social and Cultural Rights, Gen-eral comment No. 13: The right to education (art. 13) Twenty-first session (1999)

135 Ibid., para. 2.


full realization of the right to education.’136 Obligations

of actors other than States Parties are also provided.137

However, even though the Committee of the Rights of the

Child welcomed the progress made with regard to the imple-

mentation of the right to education of IDPs and refugee chil-

dren, access to education is still difficult for those children.138

As the Committee highlighted, 35% of about 600,000 IDPs

and 200,000 refugees are children and they live in very poor

conditions, lacking, among other things, educational facili-

ties.139 Therefore, the Committee recommended the plac-

ing of displaced children in the schools, especially in the

local communities in order to facilitate their integration.140

The Committee on the Elimination of Racial Discrimination

reiterated in its General Recommendation XXII, article 5,141

the right of IDPs as well as refugees to freely return to their

homes of origin under conditions of safety. The Committee

also highlighted the obligation of the state parties to ensure

that the return is voluntary and to observe the principle of

non-refoulement and non-expulsion of refugees; the right

of IDPs to have property restored to them and to receive

appropriate compensation for property that cannot be re-

stored; as well as the right to participate fully and equally

in public affairs at all levels, to have equal access to public

services and to receive rehabilitation assistance. However,

as the Committee on Economic, Social and Cultural Rights

(CESCR) noted in its concluding observations,142 in many

parts of Nepal for example, ‘IDPs have not been allowed

to return to their homes in safety (…). In many cases, the

property and land of these persons have not been returned

to them, contrary to the November 2006 Comprehensive

Peace Agreement. Moreover, the ambiguous criteria for

identifying genuine IDPs have resulted in a lack of protec-

tion against displacement and discrimination on compen-

sation and assistance.’143 Therefore, the CESCR recom-

136 Ibid., para. 43.


138 Committee on the Rights of the Child, Concluding observa-tions CRC/C/AZE/CO/2, 41st Session (2006) Azerbaijan, Con-sideration of Reports Submitted by States Parties Under Article 44 of the Convention, para 57 (e).

139 Ibid., para 59.

140 Ibid., para 58 (f).

141 Committee on the Elimina-tion of Racial Discrimination, General recommendation XXII on article 5 of the Convention on refugees and displaced persons. Forty-ninth Session (1996).

142 Committee on Economic, social and cultural rights, Con-sideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant , Other Concluding Observations, E/C.12/NPL/CO/2 Thirty-eighth session, (2007) NEPAL. 2007 Reports: Hungary, Netherlands (Antilles), Finland and Latvia.


49

mended ‘to implement effectively, the Comprehensive

Peace Agreement (…)’ and ‘that the State party estab-

lished an effective strategic plan including a monitor-

ing mechanism, for the safe and dignified return, reg-

istration, rehabilitation and reintegration of IDPs.’144

Other rights related to IDPs have been established by

the Covenants and Conventions and therefore have

been commented by the several Committees.145 The

concluding observations have permitted the Commit-

tees to sometimes supervise the state members in its

commitment to the treaties ratified, as well as to exert

political pressure when violations have been committed.

However, as O’Flaherty and Brien explain,146 the treaty

body has resulted in being inefficient and ineffective for

several reasons. The main impact of the expansion in

human rights activity is that the system is overloaded.

Moreover, the treaty body system has always pre-

sented an important lack of resources, an inadequate

administrative support as well as political factors that

has caused a late or even an non-existing reporting

from several countries in several times. The dispersal

of responsibility and procedural heterogeneity across

the separate committees has also contributed to their

inefficiency and inefficacy. Moreover, the Committees

and process of reviewed State reports and considering

communications are, in general, little known as well as

complex.147

Therefore, little cases exist, either IDP communica-

tions, either communications from other victims of hu-

man rights violations.

144 Ibid., para 33.

145 Another right linked to IDPs is the right to the highest attainable standard of health (Article 12). As the Committee says, ‘Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable stan-dard of health conducive to liv-ing a life in dignity.’ Among other rights provided ad comment by the Covenants linked to IDPs are the right to liberty of movement and freedom to choose resi-dence (article 12 of the ICCPR), to equality of rights between men and women (article 3 of the ICESCR); the right to participate in public affairs, voting rights and the right of equal access to pub-lic service (Art. 25 of the ICCPR); the rights of minorities (Art. 27 of the ICCPR); the prohibition of torture and cruel treatment or punishment (Art. 7 of the IC-CPR); the right to non-discrimi-nation (Article 2 of the ICESCR); the rights of the child (Art. 24 of the ICCPR); the prohibition of propaganda for war and inciting national, racial or religious ha-tred (Art. 20 of the ICCPR); the right of freedom of expression (Art. 19 of the ICCPR); the right to liberty and security of persons (Art. 9 of the ICCPR); the right to work (Art.6 of the ICESCR); the equal right of men and women to the enjoyment of all economic, social, and cultural rights (art. 3 of the ICESCR); and the right of non-discriminatory implementa-tion of rights and freedoms (Art. 5 of the ICESCR).

146 O’Flaherty, Michael and O’Brien, Claire, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Con-cept Paper on the High Commis-sioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7 Human Rights Law Review, 141, at 152.

147 An example of its complexity is the fact that the Communica-tions shall be fully documented, the Committee where the com-plaint is submitted has to be de-termined. Moreover, the commu-nications cannot be anonymous and some people do not dare to present a communication.


After an extensive evaluation of the treaty body sys-

tem by an Independent Expert appointed by the

UN Secretary-General, a redefinition of the Human

Rights System has been seriously taken. The 1996

Independent Expert Final Report reiterated as critical

the increasing of resources, the taking of measures

to enhance efficiency and the revision of the treaty

monitoring system’s fundamental operating model.

After a lot of debate148 and thanks to the launch on

UN reform initiatives by the Secretary-General,149

the UN High Commissioner for Human Rights (OH-

CHR) was asked to propose recommendations for

‘New streamlined reporting procedures’ and drafted

the 2005 Plan of Action: Protection and Empower-

ment.150 The Plan of Action committed the OHCHR

to develop a ‘concept paper’ addressing modalities

for a permanent standing body: The 2006 Concept

Paper on the High Commissioner’s Proposal for a

Unified Standing Treaty Body. 151 However, specific-

ity and mainstreaming are two concepts that do not

seem to work together, as, according to these au-

thors, has been already seen in the UN.

Nevertheless, we must hope that the unification will

also permit some specificity, in order to protect all

categories of rights holders, as IDPs.

148 Different studies were presented by different authors legal experts. Bayefsky, for example, proposed the unification of the system into a single body, underlying the need of more effectiveness. Heyns and Viljoen presented another study, underly-ing the importance of the treaty system in facilitating support for human rights.

149 Report of the Secretary-General In Larger Freedom, Toward Development, Security and Human Rights for all, para. 147. The Secretary-General previously asserted the need for greater coordina-tion and integration in the UN human rights system and amongst the treaty bodies in - Report on the Secretary Gen-eral, Strengthening the United Nations: An agenda for further change, UN Doc A/57/387 (2002), paras 52–4. Report of the Secretary-General In Larger Freedom, Toward Development, Security and Hu-man Rights for All. It has to be said that this last report presented a more ambi-tious reform agenda than the one pre-sented by the OHCHR.

150 OHCHR, Plan of action submitted by the OHCHR, Report of the Secretary-General In Larger Freedom, Toward De-velopment, Security and Human Rights for All.

151 This paper observes that there are still ‘serious challenges’ caused by the limited coordination and collaboration among treaty bodies and by the duplication and present practical solutions to these prob-lems, some of those have already been taken. It recommends the unification of the treaty body system, with the objec-tive of making States Parties implement their legal obligations under the treaty and strengthening the level of protection at the national level, permitting the develop-ment of innovative working methods and approaches to human rights protection, clear modalities for the participation of United Nations partners and civil soci-ety, developing stronger capacity to as-sist States parties, stronger platform for regional-level activity and links with other human rights bodies. The paper also strongly suggests a single reporting cycle and unified report, presenting several options, and lists the tasks that a single permanent monitoring body might be ex-pected to perform. However, O’Flaherty and Brien talk about the insufficient con-sideration in the Concept Paper of the risk that unification can bring in reducing at-tention to the different categories of rights holders. However, as they say, the paper claims that a unified body would stimulate more effective mainstreaming of the rights of specific groups or issues, making these more visible and central as a common ap-proach will be developed. Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, 14 March 2006, HRI/MC/2006/CRP.

51

Regional Systems

Regional systems have also created mechanisms to

protect IDPs. As Buergenthal said, regional systems

supplement the human rights efforts of the U.N., as

they are more effective dealing with individual human

rights violations than the U.N. and its various human

rights institutions, which better deal with gross viola-

tions.152 However, the volume of actual jurisprudence

produced by regional human rights courts on the issue

of IDP rights has been modest.

The European Convention on human rights conducted

in the first regional system for the protection of hu-

man rights. Moreover, the European Court of Human

Rights is a principal regional human rights mechanism

in the world, where individual complaints are submitted

and the execution of judgments is supervised.153 The

Convention thus became the first human rights treaty

to give individuals standing to file cases directly with

the appropriate tribunal. Other European human rights

mechanisms exist: the 1961 European Social Charter,

the 1987 European Convention for the Prevention of

Torture and Inhumane and Degrading Treatment or

Punishment, the 1995 Framework Convention for the

Protection of National Minorities, the Commissioner

for Human Rights, the Organization for Security and

Cooperation in Europe, as well as the European Union.

The European human rights mechanisms are well-es-

tablished and -developed, as the European Conven-

tion has been ratified by 46 states and the European

Court of Human Rights could serve as a model for

other regions.

152 Buergenthal, Thomas, ‘The Evolving International Human Rights System’, at p. 792.

153 Over time, the European Court of Human Rights for all practical purposes has become Europe’s constitutional court in matters of civil and political rights.

52

Even if not much case law has been produced in the

European Court of Human Rights, some IDP cases have

been considered. The Court found that Turkey violated

Article 8 (Protection of family life),154 as well as other

provisions by enacting a systematic policy designated

to displace Greek Cypriots from Northern Cyprus.155

The Court also condemned the destruction of a man’s

house and possessions that forced his family to leave

their village in Turkey in Yôyler.156

The Court declared that it had been a violation of

Article 3 (Prohibition of inhumane and degrading

treatment), Article 8 and Article 1 of the Protocol No.

1 of the Convention (Right to the peaceful enjoyment

of his possessions), as well as Article 13 (Right to an

effective remedy before a national court). In Dogan157

applicants complained about their inability to return to

their villages and the Court also declared that Turkey

violated Article 1 of Protocol No. 1, as well as Article 8

and Article 13 of the Convention. There are, currently,

approximately 1,500 similar cases from southeast

Turkey registered before the European Court of Human

Rights.158

The political,159 economic, and social problems in Afri-

ca are much more severe than in other regions. Severe

poverty and corruption, as well as ongoing warfare and

internal armed conflicts make the creation of an effec-

tive and aimed regional human rights system difficult.

However, several regional mechanisms have been cre-

ated160 and efforts have been made concerning the

protection of IDPs.

The Organization of African Union (OAU) created the

Bureau for Refugees, Displaced Persons and Humani-

tarian Assistance161 and held a conference with the

UNHCR in 1998 where they looked at the position of

154 As Starr and Brilmayer said in their article, the European sys-tem has produced the most de-veloped family privacy doctrine. Starr, Sonja and Brilmayer, Lea ‘Family Separation as a Violation of International Law’ (2003) 21 Berkeley J. Int’l L. 213, at 218.

155 Cyprus v. Turkey, App. No. 25781/94, 35 Eur. H.R. Rep. 731, 2001, para 64.

156 Yôyler v. Turkey, no. 26973/95, Judgment, 23 July 2003.

157 Doğan and others v. Turkey, ECHR, Judgment 29 June 2004.

158 ECHR, Press Release issued by the Registrar, 8.1.2004.

159 As Beyani says, ‘Institutional developments that are taking place within the African human rights system signal a clear de-sire to strengthen the protection of human rights in the region. However, there must be a cor-responding commitment from the African Union to invest ad-equate resources to improve the functional competence of the system.’ Chaloka Beyani ‘Recent Developments in the African Hu-man Rights System 2004–2006’7 (2007) Human Rights Law Re-view, at 27.

160 The Organization of African Unity (now the African Union), the African Charter on human and People’s Rights, the African Commission on Human and Peo-ples’ Rights (ACHPR), the African Court of Human and Peoples’ Rights, the African Committee on Experts on the Rights and Welfare of the Child, the OAU Division for Refugees, Displaced Persons, and Humanitarian Assistance, the OAU Mechanism for Con-flict Prevention, Management, and Resolution and the recent African Court of Human Rights. Several Sub-Regional Mecha-nisms have also been created as the Economic Community of West African States (ECOWAS), l’Union Economique et Monétaire de l’Afrique de l’Ouest (UEMOA), the Inter-Governmental Authority on Development (IGAD), the East African Community, the South-ern African Development Com-munity (SADC), as well as the African Union.

161 It was previously named Bu-reau for Placement and Educa-tion of African Refugees.


53

IDPs. The OAU became the African Union, which cre-

ated a Division on Humanitarian Affairs, Refugees and

Displaced Persons.

The African Commission on Human and Peoples’

Rights (ACHPR) have often mentioned IDPs as a group

in need of particular attention and the Charter has al-

lowed to civil, political, cultural and social rights be ap-

plied in relation to IDPs.

In Suleiman,162 for example, the Commission held that

Article 12(1) (Freedom of movement and residence

within a State) had been violated because an indi-

vidual was prevented from traveling around the coun-

try to do his human rights work as a result of threats

by security officials and authorities. It also highlighted

the importance of submitting ‘communications on vio-

lations of the rights of refugees, asylum seekers and

other reasons of concern to UNHCR.’163 However, the

powers of the African Commission to deal with inter-

state and individual communications are much more

limited than those conferred by the European and in-

ter-American human rights treaties in part because its

findings. The Commission is not really a mechanism to

deal with individual petitions as is the case in other re-

gional systems, because it only permits individuals to

file petitions charging massive/persistent violations.

As Murray argued in his article,164 the Commission had

not developed a coherent policy on human rights and

displaced persons and it seems to operate in ‘splendid

isolation’.165 However, in June 2004 the Commission

established the figure of a Special Rapporteur on refu-

gees, asylum seekers and internally displaced persons

in Africa.166 An African Court has also been recently es-

tablished, with a broader contentious jurisdiction than

that of the European and inter-American Court and with

extensive jurisdictional powers. Even if it is still too early

162 Communication 228/99, the Law Office of Ghazi Suleiman v Sudan, Sixteen Annual Activity Report of the African Commis-sion, at 48.

163 African Commission on Hu-man and Peoples’ Rights 2003-2004, Seventeen Activity Annual Report, at 50.

164 Murray, Rachel, ‘Refugees and Internally Displaced Persons and Human Rights: The African System’ 24 (2) (2005) Refugee Survey Quarterly, at 61.

165 However, some recom-mendations have been made to improve their relationship, reviewing the Status, Mandate and Independence of the Com-mission in a meeting in Banjl, the Gambia, in May 2006. See Beyani at 586-587. A daft legal framework for the protection and assistance of internally dis-placed persons adopted by the African Union Ministerial Com-mittee adopted is directly linked to the protection function of the Commission. Beyani, Chaloka ‘Recent Developments in the African Human Rights System 2004–2006’, at p. 589.

166 However, as Beyani says in her article, the Special Rap-porteurs are not independent experts from outside the Com-mission. Rather, they are des-ignated members of the Com-mission, who work individually, between Commission sessions, to promote human rights and investigate conditions affecting the protection of human rights in thematic areas chosen by the Commission. Ibid., at p. 588.

54

to know what impact the new Court of Justice will have

on the Court’s role, although it seems a step forward in

the protection of human rights, including IDP rights.

Moreover, in 2006 the International Conference on the

Great Lakes adopted a Protocol – and a Committee –

on the Protection and Assistance to Internally Displaced

Persons167 as well as a Protocol on the Property Rights

of Returning Persons, which, even if their draft legisla-

tion is not binding, they can contribute to the commit-

ment of Member States to the process of IDP protec-

tion in the region of the Great lakes.168 In addition, the

African Union is currently in the process of developing

an IDP Convention that is expected to be adopted by

Member States in 2008.169 ‘The adoption of the Con-

vention is expected to put Africa at the forefront of pro-

tection of IDPs through a unified and binding normative

framework.’170 However, the situation and the number of

IDPs in Africa remains alarming.

Even if the inter-American system did not deal with IDP

issues for 30 years, as Sandoval171 explains in her ar-

ticle, it has been interpreting the standards incorporated

in the Declaration and the Convention for the protection

of IDPs since 1990. The Court and the Commission in-

dicated that unlawful displacement constitutes a mul-

tiple violation of human rights, also indicating that the

Declaration and the Convention do not incorporate other

essential rights such as the right not to be unlawfully dis-

placed, to enjoy and secure return and reintegration, or

to find refuge in a safe part of the country. However, they

had paid special attention to the problem of documen-

tation and IDP violations had not been approached in a

systematic manner. The focus on IDP had been sporadic

and concentrated mainly on the reiteration of regional

and international jurisprudence on the topic.


167 The Protocol goes even fur-ther than the Guiding Principles in a number of respects, as it include, for example, those who are forced from their homes by the effects of large scale devel-opment projects. Protocol on the Protection and Assistance to In-ternally Displaced Persons 2006. Adopted 30 November 2006, at Article 1(5).

168 Each Protocol is supple-mented by model legislation, annexed to the text of the Proto-col which provides a suggested framework for the implementa-tion of the Protocol at national level. Protocol on the Property Rights of Returning Persons 2006. Adopted 30 November 2006.

169 Internal Displacement Moni-toring Centre, Quarterly Update April-June 2007.

170 Report of intersession Activ-ities by Commissioner Bahame Tom Nyanduga, Special Rappor-teur on Refugees, Asylum Seek-ers, Migrants and IDPs in Africa to the 41st Session of the African Commission on Human and Peoples’ Rights. 16 to 30 May 2007, Accra, Ghana, at 5.

171 Sandoval, Clara, ‘A Criti-cal View of the Protection of Refugees and IDPs by the Inter-American System of Human Rights: Re-assessing its Powers and Examining the Challenges for the Future’ 17 (1) (2005) Int’ J.Refugee L., at 54.

55

The Commission wrote three reports on IDPs,172 where

an extensive use of the Guiding Principles on Internal

Displacement was made in the one on Colombia. The

Commission made some efforts to monitor compli-

ance by States with its precautionary measures while

establishing a working group, ‘GRUMECA’. However,

it lacked a proper mechanism to deal with IDP; even if

provisional measures can be requested by the Court in

really extreme situations, their application still depend-

ed on the political will of the Sates. Moreover, none

of the Rapporteurs of the Commission have a direct

mandate to deal with IDPs.

The Court, which has not been ratified by the US, Can-

ada and the Bahamas, produced jurisprudence that has

been useful for the protection of IDPs. The Court includ-

ed within the scope of the right to a fair trial (article 8(2)

of the Convention) any administrative proceeding such

as that for the determination of an asylum request.173

Moreover, key concepts were established, such as a

‘dignified life’ and proyecto de vida (‘life plan’). The court

started moving toward the protection of other rights, in-

stead of the rights to life and humane treatment, and

the protection of economic, social and cultural rights

started to be seen as possible.174 Two advisory opinions

specifically referred to internal as well as external dis-

placement. Advisory Opinion 17, 2002 on the Juridical

Condition and Human Rights of the Child,175 stressed

the need for States to adopt special measures and to

follow due process of law in some circumstances. The

Juridical Condition and Rights of the Undocumented

Migrants176 is also very important as it clarified the con-

tours of the right to equality of vulnerable people, con-

sidered to have ius cogens status. Further, the Court

indicated that this special provision entails affirmative

action in relation to particular groups or individuals.

172 Two reports were on Gua-temala focusing on resettlement of refugees and IDPs and one on the situation of IDPs in Co-lombia.

173 Baena Ricardo and others v. Panama, IACHR, Judgment, 2 Feb. 2001, paras 124-130; Constitutional Tribunal v. Peru, IACHR, 31 Jan. 2001, paras 68-71.

174 See for example Inter-Amer-ican Court of Human Rights, Provisional measures on Behalf of Haitian and Haitian Origin Do-minican Persons in the Domini-can Republic, above n. 26 and concurring opinion by Judge A. Cancado Trindade, para 14.

175 Advisory Opinion 17, on the Juridical Condition and Human Rights of the Child, Inter-Ameri-can Court of Human Rights, 28 Aug. 2002.

176 The Juridical Condition and Rights of the Undocumented Migrants, Inter-American Court of Human Rights, Advisory Opin-ion 18, 2003.


The Commission and the Court deployment of a clear

strategy of harmonization and standardization of inter-

national law when they refer to the Guiding Principles

on Internally Displaced, to the Geneva Conventions

and to their 1977 Protocols, as well as their traditional

focused on specific groups, has contributed to dealing

with two cases related to IDP situations.

The Mapiripan Massacre v. Colombia judgment, in Sep-

tember 2005, and the Ituango Massacre v. Colombia

judgment, in July 2006, both dealt with the deprivation of

liberty, torture and massacre of civilians perpetrated by

the paramilitary group Autodefensas Unidas de Colom-

bia, which forced several families to flee their homes.

The Court considered that the implication of the Colombi-

an National Army in the incursions underlined the State’s

responsibility for human rights violations and it ultimately

found the Colombian State responsible for violating Article

4 (Right to Life) of the Convention,177 Article 5.1 and 5.2

(Right to Personal Integrity),178 Article 6(2) (Freedom from

Slavery),179 Article 21 (Right to Property),180 Article 11 (2)

(Right concerning the prohibition of arbitrary or abusive

interference in a person’s private life and home),181 Article

22 (Right to freedom of movement and residence),182 Ar-

ticle 19 (Rights of the Child),183 Article 5 (Right to human

Treatment),184 Article 8 (1) (Right to a Fair Trial) and Article

25 (Right to Judicial Protection).185

Moreover, several forms of monetary and non-mon-

etary reparations were demanded of the Colom-

bian government, such as the provision of housing

for the surviving victims,186 the payment of adequate

medical treatment,187 the construction of a symbolic

monument,188 and the need to enable the safe and dig-

nified return to all displaced persons who want it.189

177 Inter-American Court of Hu-man Rights, The Maripan Mas-sacres v. Colombia, Judgment of September 15, 2005, para 335 (1); Inter-American Court of Human Rights, The Ituango Mas-sacres v. Colombia, Judgment of July 1, 2006, para 426 (3).

178 Inter-American Court of Hu-man Rights, The Maripan Mas-sacres v. Colombia, Judgment of September 15, 2005, para 335 (2).

179 Inter-American Court of Hu-man Rights, The Ituango Mas-sacres v. Colombia, Judgment of July 1, 2006, para 426 (4).

180 Ibid., para 426 (6).

181 Ibid, para 426 (7).

182 Inter-American Court of Hu-man Rights, The Maripan Mas-sacres v. Colombia, Judgment of September 15, 2005, para 335 (4); Ibid , para 426 (8)

183 Ibid., para 335 (9); Ibid, para 426 (3).

184 Ibid., para. 335 (10) (11) (12).

185 The Ituango Massacres v. Colombia, Judgment of July 1, 2006, para 426 (13); The Maripan Massacres v. Colombia, Judg-ment of September 15, 2005, para 335 (5).

186 The Ituango Massacres v. Colombia, Judgment of July 1, 2006 , para 426 (19).

187 The Maripan Massacres v. Colombia, Judgment of Septem-ber 15, 2005, para 335 (10).

188 Ibid., para 335 (12).

189 Ibid., para 335 (11).

57

Several important demands were required in order to

prevent the repetition of such brutal acts, such as the

organizing of a public act to acknowledge international

responsibility for the deeds committed190 and the im-

plementation of educational programs in the Colom-

bian National Army.191

Therefore, as Nogueira and Efstathopoulos explain in

their article,192 the right not to be forcibly displaced was

officially acknowledged as a component of the right to

freedom of movement and residence.

‘The Court has stated that freedom of movement and resi-

dence is an essential condition for the free development

of a person193 and consists, inter alia, of the right of those

who are legally within a State to move freely within this

State and choose their place of residence.’194

The vulnerable condition of IDPs was recognized as be-

ing a violation of the right to personal integrity. ‘The spe-

cial vulnerability, owing to their condition as children, is

even more evident in a situation of internal armed con-

flict, as in this case, because children are less prepared

to adapt or respond to this type of situation and suf-

fer its excesses disproportionately.’195 The judgments

stress that internal displacement entails massive, sys-

tematic and prolonged violations of several human

rights,196 thus preventing IDPs from leading a ‘dignified

life’.197 As Nogueira and Efstathopoulos say, this entails

an expanded interpretation of the ‘right to life’.

Therefore, it can be argued that the Guiding Principles

on Internal Displacement were endorsed and clarified

by the Court, as well as new mechanisms and stan-

dards in domestic and international protection. The

State now has to ensure their safe and voluntary return

190 The Ituango Massacres v. Colombia, Judgment of July 1, 2006, para (18).

191 The Maripan Massacres v. Colombia, Judgment of Sep-tember 15, para 335 (13), The Ituango Massacres v. Colombia, Judgment of July 1, 2006, para 26 (21).

192 Nogueira, Maria Beatriz and Efstathopoulos, Charalampos ‘Colombia test cases strengthen IDP protection Colombia test cases strengthen IDP protection’ (2007) Forced Migration Review Issue 28. (July).

193 The Ituango Massacres v. Colombia, Judgment of July 1, 2006, para. 206. The Maripan Massacres v. Colombia, Judg-ment of September 15, Series C No. 134, para. 168

194 Ibid.

195 The Maripan Massacres v. Colombia, Judgment of Septem-ber 15, para . 156. The Ituango Massacres v. Colombia, Judg-ment of July 1, 2006, para 246.

196 The Ituango Massacres v. Colombia, Judgment of July 1, 2006, para. 125 (105).

197 The Maripan Massacres v. Colombia, Judgment of Septem-ber 15, para 186.

58

within a period of six months and, if this is not pos-

sible, provide new housing for them in the same condi-

tions. Therefore, durable solutions have been judicially

recognized for the first time as a remedy or form of

reparation by a human rights court, making the inter-

American court a pioneer in the consolidation of hu-

man rights monitoring of IDP situations, bringing other

IDP-related cases before human rights courts and de-

veloping and clarifying new legal standards.

The Geneva Conventions and their additional Protocols

IHL is applicable in situations of armed conflict, wheth-

er international or non-international. It is composed by

treaty and customary law. International humanitarian

treaty law is composed by the four Geneva Conven-

tions and their additional protocols. The four GCs are

ratified since August 2006 by all the Sates in the world

(194) and many of their provisions are now accepted as

general rules by which all States are bound: customary

law. IHL does not expressly mention IDPs. However,

if respected, the general rules of IHL protect civilians,

preventing internal displacement situations.198 But IHL

is not always respected and armed conflict is often the

cause of such situations. Nevertheless, IHL also pro-

tects civilians during displacement. Protection after

displacement is not provided by IHL as return would be

unlawful if an armed conflict were still taking place.199

Explicit prohibitions against the forcible displacement

of civilians unless it is essential because of security or

imperative military necessity are found in both inter-

national and non-international armed conflicts. There-

fore, the remaining of the civilians in their homes is a

198 Important rules of IHL the prohibition on attacking civilians or civilian property and on indis-criminate attacks; the prohibition on starving civilians as a method of warfare and on destroying objects indispensable to their survival; the prohibition on repri-sals against civilians and civilian property; the prohibition on using civilians as “human shields”; the prohibition on collective punish-ment, which, in practice, often consists in destroying homes and thus leads to displacement; the obligation for all States and all parties to a conflict to allow the unhindered passage of relief supplies and the provision of as-sistance necessary for the sur-vival of civilians.

199 IHL only expressly address-es the question of return in “law-ful displacements”, i.e. evacua-tions for reasons of security or imperative military necessity. In such cases, displaced persons must be returned to their homes as soon as hostilities in the area have ceased. Article 49 of the Fourth Convention.

59

basic objective of IHL. Violations of these prohibitions

are war crimes under the Statute of the International

Criminal Court.

The protection of internally displaced persons, as civil-

ians, due to international armed conflict is set forth in

detail in Articles 48 et seq. in Protocol I. It is also set

forth in Article 23 of the IV GC, in Art. 70 of Protocol

I, as well as in Art. 55 and 59 et seq. of the IV GC for

occupied territories. In addition, the civilian population

cannot be deported from occupied territory. Generally

speaking, the civilian population enjoys the fundamen-

tal guarantees stipulated in Article 75 of Protocol I.

Concerning the protection of internally displaced per-

sons due to internal armed conflicts, it has to be said

that it is very similar to that during international armed

conflicts. However, even if internal armed conflicts

are predominant nowadays, as Lavoyer says, it must

be admitted that the rules are less specific. Common

Article 3 is the basis of this protection, as it applies

for humane treatment in all circumstances, it prohib-

its a list of acts (i.e. cruel treatment) and protects the

wounded and sick asking to be collected and cared

for.200 As Article 17 says, forced movement may be car-

ried out only if required for the security of the civilians

involved or for imperative military reasons. If such dis-

placements have to be carried out, all possible mea-

sures shall be taken in order that the civilian population

may be received under satisfactory conditions of shel-

ter, hygiene, health, safety and nutrition. Although not

expressly stipulated, it is understood as Lavoyer said,

that such movements may be only temporary. Finally,

as Article 18 states, whenever the civilian population

is deprived of supplies essential for its survival, relief

actions of an exclusively humanitarian and impartial

200 Protocol II prohibits rape, enforced prostitution and any form of incident assault explicitly included in the prohibition of out-rages upon personal dignity, in Article 4. Article 4 also especially protects children and women, the major group in IDPs. Addi-tional guarantees are provided in Article 5 for persons deprived of liberty. Article 6 specifies ju-dicial guarantees, and Articles 7 to 12 stipulate that the wounded and sick, as well as those car-ing for them, must be respected and protected. It is in Article 13 where they are protected to be the object of the attack and to be threatened of violence intended to spread terror. The use of star-vation of civilians as a method of combat is prohibited in Article 14. It is also prohibited to at-tack, destroy or remove objects indispensable to the survival of the civilian population or render them unusable such as drinking water installations. The fact that works and installations contain-ing dangerous forces must not be attacked if such attacks may cause severe losses among the civilian population is in Article 15. Cultural objects and places of worship are likewise protected in its Article 16. Protocol II explic-itly prohibits forced movement of civilians.


nature and which are conducted without any adverse

distinction are to be undertaken with the consent of

the state concerned. Other rules were established as

in 1990 the International Institute of Humanitarian Law

at San Remo adopted a ‘Declaration on the rules of

international humanitarian law governing the conduct

of hostilities in non-international armed conflicts’.

Thus, international humanitarian law in international

and non-international conflicts aims at safeguarding

the civilian population as a whole. However, civilians

now seem to be the preferred policy instruments of

belligerents. Nevertheless, even if population displace-

ments are only rarely mentioned, some theoretical legal

protection exists, and if respected, it can contribute to

avoiding displacements resulting from war, as well as

to the protection of civilians once displaced.

Considering that the GCs are ratified by all the States

and that some of their provisions are customary law,

internal displacement caused by wars should start di-

minishing. However, this has not been the case.201 It

appears that the spreading of knowledge of humanitar-

ian law is a protective measure and that more efforts

should be made to apply it.

The International Criminal Tribunals

The International Criminal Tribunals, created in order

to reinforce the traditional remedy, are international ju-

dicial mechanisms that we shall include in the mecha-

nisms protecting IDPs. The ICC has ‘jurisdiction over

the most serious crimes of concern to the international

community as a whole’202 , and the ICTY deals with ‘se-

rious violations of International Humanitarian Law (…)’.

201 The number of IDPs has been growing from 1997 until 2000. It seems that it has main-tained more stable from then to 2006. Internal Displacement Monitoring Centre, Report on Internal Displacement, Global Overview of Trends and Devel-opments in 2006, at p. 12.

202 Rome Statute of the Interna-tional Criminal Court, UN Doc. A/CONF.183/9, at preamble.

61

Therefore, these two tribunals are able to deal with IDP

situations when the requirements for each of the tribu-

nals are fulfilled.

Under international law it is only permitted to displace

persons when ‘the security of the civilians or impera-

tive military reasons so demand’.203 According to a Trial

Chamber in the ICTY, ‘[e]vacuation is by definition a

temporary and provisional measure and the law re-

quires that individuals who have been evacuated shall

be transferred back to their homes as soon as hostili-

ties in the area in question have ceased.’204 In Blajevic

it was also noted that the military commanders had this

right but also the duty to evacuate civilians for security

reasons as a result of military operations. Humanitarian

reasons could be also a justification for evacuation of a

civilian population.205

The ICTY has undertaken the prosecution of several

offenders related with violations concerning IDPs.

‘Unlawful deportation or transfer’ is a grave breach of

the Geneva Conventions, punishable as a war crime

under Article 2 of the ICTY Statute. A Chamber has

considered for the first time the transfer of civilians

under Article 2(g) of the Statute in Natelic.206 As Prof.

Schabas analyzed, the ICC has added ‘forcible trans-

ferring’ in its Statute to the contemporary formulation

of deportation in order to cover internal displacement.

207 However, judges have differed as to whether IDPs

can be subsumed within the crime against humanity

of deportation as some chambers have been uncom-

fortable with the distinction between ‘deportation’ and

‘forcible transfer’.208

In Krstić,209 a Trial Chamber was uncomfortable with

that distinction, and it consequently refused to consid-

203 Convention Relative to the Protection of Civilian Persons in time of War, (1950) 75 UNTS 287, art 49(2); Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609, art. 17 (1).

204 Blagojević (IT-02-60-T), Judgment, 17 January 2005, para. 597.

205 Ibid, paras. 597-600.

206 Natelic et al, (IT_98-34-T), Judgment, 31 March 2003, para 517.

207 Schabas, The UN Interna-tional Criminal Tribunals, The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge Uni-versity Press, Cambridge 2006), at p. 203.

208 This distinction is clear for M. Cherif Bassiouni. See for exam-ple Bassiouni, M. Cherif, Crimes Against Humanity in International Criminal Law (2nd Revised Ed. Kluwer Law International, the Hague 1999).

209 Krstić (IT-98-33-T), Judg-ment, 2 August 2001.

62

er the crime against humanity of deportation referring

to the expulsions of Bosnian Muslims from Srebrenica

still with the borders of Bosnia and Herzegovina. The

Chamber decided to consider it ‘forcible transfer’ with-

in national borders, falling within the residual ‘other in-

humane acts’category of crimes against humanity.210 In

Stakić, no cross-border requirement was envisaged by

the Trial Chamber to consider a crime against humanity

of deportation.211 However, the Appeals Chamber dis-

missed it, considering that a border crossing was re-

quired in the concept of ‘deportation’, even in cases of

de facto state borders. Therefore, the Appeals Cham-

ber in Stakić made a clear distinction between ‘depor-

tation’ and ‘forcible transfer’. It stated as follows:

‘The Appeals Chamber is of the view that the actus reus

of deportation is the forced displacement of persons by

expulsion or other forms of coercion from the area in which

they are lawfully present, across a de jure state border or, in

certain circumstances, a de facto border, without grounds

permitted under international law.’212

The actus reus of forcible transfer is the forced displace-

ment of persons within national boundaries.213

The Appeals Chamber considered that ‘deportation’

had not taken place in the present case referring to

internal displacement. Instead, it considered the situ-

ation as amounting to ‘forcible transfer’ as a crime

against humanity under the category of ‘other inhu-

mane acts’.214

The distinction between ‘forcible transfer’ and ‘depor-

tation’ has recently been cited by a Trial Chamber in

Martić.215 The de facto border element has also been cit-

ed by this Chamber as a possible sign of deportation.216

210 Krstić (IT-98-33-T), Judg-ment, 2 August 2001, para. 532. See also Kupreškić et al. (IT-95-16-T), Judgment, 14 January 2000, para. 566, Milosevic (IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 52.

211 Stakić (IT-97-24), Judgment, 22 March 2006, para 674.

212 Ibid., para 278.

213 Ibid., para 317.

214 Ibid., para 361-362.

215 Martić (IT-95-11), Judgment, 12 June 2007 paras. 107, 180, 189.

216 Ibid, para. 110.

63

It could be argued that the distinction between ‘forc-

ible transfer’ and ‘deportation’ is important in order to

continue considering the terms internal and external

displacement as different phenomena, and therefore

the terms ‘refugee’ and ‘IDP’ as different concepts.

However, the fact of considering ‘forcible transfer’

under the residual category of ‘other inhumane acts’

seems a relegation of the importance of internal dis-

placement compared to the attention devoted to ex-

ternal displacement. Therefore, it would have seemed

more appropriate to include ‘forcible transfer’ in the

ICTY Statute as a crime in the same level of impor-

tance as ‘deportation’. Nevertheless, the inclusion of

‘forcible transfer’ in the ICC can be seen as a progres-

sive development in favor of IDP protection as it is able

to be applied in future ICC cases, and can be used as

a precedent for future tribunals.217

Several provisions were made concerning the protec-

tion of victims and witnesses’ rights.218 The Victims

and Witnesses Section (VWS) of the ICTY- as well as

the ICTR - provide support and protection of victims

and witnesses, who are encouraged and not obliged

to testify.219

The ICC provides protection to victims and witnesses

in its article 68,220 75221 and 87.222 A VWS is also pro-

vided in the ICC for ‘witnesses, victims who appear

before the court and others who are at risk on account

of testimony given such witnesses’ with appropriate

protection and security measures and, if necessary, to

formulate long-term or short-term plans for their pro-

tection.223 As Rydberg and Askin said, this provision

could contribute to the protection of IDPs as they can

require the cooperation of states.224

217 The ICC seems to be sensi-tive to IDPs issues. It has hold, for example, mass outreach ac-tivities in IDPs’ camps in order to extend their understanding of the judicial role of the Court and its mandate. See ICC, Newsletter E-16. qxp, 2007, at 4.

218 Moreover, the General As-sembly as well as other organs in the UN can also contribute to the improvements of victims’ rights. See the new UNGA resolution ‘Basic Principles and Guide-lines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Seri-ous Violations of International Humanitarian Law’. Report of the Secretary-General In Larger Freedom, Toward Development, Security and Human Rights for All. Basic Principles and Guide-lines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Hu-manitarian Law.

219 Concerning the ICTY for ex-ample, witnesses normally watch a video about testifying before the tribunal, previous to their trip to the Hague; can normally tes-tify in their language; can order non-disclosure to the public of any records, as well as image-altering and/or voice-distortion; can have 24 hour live-in support at their accommodation dur-ing their stay in the Hague; and security officers and cameras in the courtroom are provide to dissuade a defendant from at-tempting to intimidate a witness on the place.

220 This article provides a par-ticipatory role for witnesses and another for victims.

221 This article concerns repara-tions to victims

222 This article request for state cooperation.

223 Rome Statute, at Rule 17 (2) (a) (i).

224 See Rydberg and Askin, ‘International Criminal Tribunals: Refugees and Internally Dis-placed Persons Who May Be Witnesses Before the Tribunals’ In Fitzpatrick, Joan, Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons.

64

However, even if ‘forcible displacement’ is defined in

the Rome Statue, ‘unlawful deportation or transfer’

as well as ‘other inhumane acts’ are punishable in the

ICTY, and some protection is provided for victims and

witnesses and several testified in these tribunals,225

the fully efficacy and the fully IDP protection of these

mechanisms can be questioned. The main concern

could be the fact that ‘forcible transfer’ might not be

seen as having the same level of importance as ‘de-

portation’. Moreover, there are also limited mandates,

scopes of jurisdiction, and resources. It is only pos-

sible to prosecute the most serious offenders and to

hear few witnesses. The fact that the tribunals are not

in the victims’ and witnesses’ country of residence

compounds the already difficult task of testifying about

horrible acts before an intimidating defense counsel.

Moreover, the Unit personnel are not nationals. Protec-

tion of witnesses is not fully provided and they have

been the target of violence several times. In addition,

the fact that witness anonymity can only be granted

in highly exceptional circumstances is another disad-

vantage and, therefore, witnesses present concerns

about reprisals and do not always decide to testify.226

Thus, advocacy as well as national courts are essential

in order to provide accountability for the offenders as

well as protection to IDPs and other victims and wit-

nesses.

Other developments and a global po-int of view

The protection of IDPs in the contemporary interna-

tional human rights system, which is one of its most

remarkable developments, also comprises the special-

ized agency of the UNHCR as well as other intergov-

225 It is not precisely known know how many IDPs, refugees and asylum seekers testified in the ICTY. However, the Victims and Witness section of the ICTY estimated that IDPs, refugees and asylum seekers constituted well above half of all the wit-nesses in 2000.

226 See for example the UN-HCR, ‘Update on Conditions for Return to Bosnia and Herzegov-ina’, 2005.


65

ernmental organizations. The Truth Commissions also

contribute to the advancement of IDPs protection by

investigating large-scale violations of human rights and

laying the groundwork for national reconciliation. The

growth of human rights NGOs working directly for IDPs

and/or advocating others’ activities, as well as national

human rights institutions,227 is also essential.

As Buergenthal explains, the proliferation of human

rights treaties and the emergence of international and

regional human rights tribunals established to interpret

and apply these treaties have encouraged an increas-

ing number of states to accord human rights treaties a

special status in their national constitutions.228 Apply-

ing these instruments to have a directed impact on the

domestic administration of justice is the best way to

ensure effective implementation of internationally guar-

anteed human rights. This proliferation as well as this

acquisition has therefore contributed to the protection

of IDPs. However, and even if human rights also have

an increasing voice in international relations because

states find it politically more costly to engage in or tol-

erate massive violations of human rights, I personally

consider that much has to be done in order to give an

effective protection to IDPs.

227 Committee for economic, social and cultural rights high-lighted the importance of na-tional human rights institutions in its General comment no.10, nineteenth session (1998).

228 It happens for the countries that consider many provisions of various human rights treaties to be self-executing in character (especially in Europe and Latin America), as well as those that have to incorporate legislation to make a treaty provision directly applicable.

67

oPeRATIonAl PRoTeCTIon of InTeRnAlly DIsPlACeD PeRsons

68Operational Protection of Internally Displaced Persons

operational Protection of Internally Displaced Persons

Seeking better protection for IDPs in the field

As Sheridan explains in her article,229 the interna-

tional community recognized that its response to

complex emergencies of forced migration was

‘highly uneven’ ‘poorly coordinated’ and charac-

terized by ‘neglect of protection’. Consequently,

a debate trying to solve the situation started to

take place. The creation of a new agency for the

internally displaced was proposed at the begin-

ning of the 1990s,230 as well as the assignment of

responsibility for IDPs to an existing agency and

the strength of collaborative arrangements among

agencies whose mandates and activities relate to

the needs of IDPs.

The first option was considered unrealistic by most

of the reformers, who argued that there was no

political will and also that there were not enough

resources to establish a new agency. It was also

argued that it could weaken rather than strengthen

the international response. Some authors have

considered that there is no need for the creation of

a new agency.231 The proposals to improve the U.N.

response to the problem of internal displacement

had mainly focused on formally extending UNH-

CR’s mandate to include the internally displaced

and UNHCR has become increasingly involved in

them.232 However, due to the complexity and large

scale of the problem of IDPs, as well as the existing

commitment of several agencies to the assistance

and/or protection of IDPs, it was considered bet-

ter to strengthen their collaborative arrangements

229 Sheridan, L.M.E, ‘Insti-tutional Arrangements for the coordination of humanitarian assistance in complex emergen-cies of forced migration’ (2000) 14 Georgetown Immigration Law Journal 941, at 952-953.

230 Internally Displaced Per-sons, Study of the Representa-tive of the Secretary-General, Mr. Francis Deng, U.N.DOC. E/CN.4/1993/ 35 (1993), para 285.

231 Phuong, Catherine, ‘Improv-ing the UN Responses to Crisis in Internally Displaced Persons’ 13 (4) (2001) Int. J Refugee Law, at p. 500.

232 Ibid., at p. 496.

69

in order to try to face the situation. The High Commis-

sioner for Refugees itself called ‘for a comprehensive

and concerted effort of the United Nations and other

humanitarian organizations.’233 Therefore, a ‘collabora-

tive approach’ was the response chosen by the U.N. to

face IDPs issues. Under this ‘collaborative approach’,

all agencies share the responsibility for responding to

situations of internal displacement.

Toward a coordination mechanism: the ‘Collaborative Approach’

Efforts to improve the coordination of humanitarian or-

ganizations have been made since then. In 1992 the

post of Emergency Relief Coordinator (ERC) was cre-

ated. The Coordinator chairs the Inter Agency Standing

Committee (IASC) and was the head of the Department

of Humanitarian Affairs (DHA), which was renamed the

Office for the Coordination of Humanitarian Affairs

(OCHA or Coordinator). The Coordinator and the IASC

had to ensure that sufficient attention is being paid to

IDPs as well as other vulnerable populations outside

the protection of a particular agency. The Coordinator

was designated by the General Assembly as the focal

point for IDP issues.234 However, the Coordinator failed

in his coordination role.

Therefore, in 2000 the UN carried out a study aimed

at conceptualizing the idea of protection and setting

up a better coordination mechanism. The Inter-Agency

Standing Committee asked the Senior Interagency

Network on Internal Displacement to evaluate the qual-

ity of humanitarian responses to displaced persons,

identify gaps in protection and assistance, and make

recommendations to agencies. Six month later, in April

233 Statement of the UNHCR to the World Conference on Human Rights, Vienna, June 15, 1993.

234 Report of the Secretary-Gen-eral, Renewing the United Na-tions: a program for reform, UN Doc A/51/950 (1997), para 186.

70

2001, a small non-operational coordination office was

proposed and the Internal Displacement Unit was cre-

ated in the office for Coordination of Humanitarian Af-

fairs. This Unit is supposed to formalize and strengthen

coordination and humanitarian response and the sup-

port of the international community for IDPs. However,

as the external evaluation examines,235 its activities

have not amounted to positive change in how the U.N.

responds to internal displacement because of U.N. fail-

ings and Unit lack of focus. The Unit has presented

a lack of strategic and unclear objectives, as well as

a lack of follow-through that has resulted in its mar-

ginalization in the planning of the handling of internal

displacement.236 Even if the Unit has contributed to

promoting the protection of IDPs,237 more efforts need

to be made. Moreover, the Unit also lacks the security

of a continued existence. For all these reasons, the ex-

ternal evaluation presented nine recommendations to

the Unit, the Coordinator, and to the Agencies.

It was recommended that the Unit focus on providing

technical support as well as internal advocacy and pro-

tection within the UN system.238

Internal advocacy is considered essential to make the

system work. When it is not the case, protection, as

the main concern for IDPs, was recommended to be

strengthened by offering leadership in coordinating

protection, improving protection mechanisms239 and

fostering dialog on protection within the international

system and with national governments. The study gave

the Unit and the Coordinator three years to improve its

services and protection to IDPs and recommended its

removal if no changes took place.

235 Final report, External evalua-tion of OCHA’s Internal Displaced Unit, (2004), at 27.

236 An example of this marginal-ization can be found in the action carried out in Iraq.

237 It has developed internal dis-placement advisors, conducted the Protection Survey (with the Brookings - SAIS Project), and attempted to get the Protection Coalition off the ground.

238 In the past the Unit tended toward only providing technical support.

239 The Unit should use the tools of the Protection Survey and the Response Matrix, as well as take stock of the failure of the efforts of the Protection Coalition.

Operational Protection of Internally Displaced Persons

71

Improving the coordination mecha-nism: the ‘Cluster Approach’

The debate about the operational protection of IDPs

has never concluded. The ‘collaborative approach’

was deemed inadequate to the task by several authors

and by the U.N. Some experts consider that the lead-

ership offered by the UNHCR concerning the protec-

tion of IDPs is better than that ‘collaborative approach’.

However, the debate has lately not been resulted to a

zero sum game. In December 2005 the IASC Principles

generally welcomed a new approach called ‘the cluster

approach’.240 Coordinator’s Internal Displaced Division

(former Internal Displacement Unit) proposed that sev-

eral organizations assume responsibilities for specific

functions in order to make the overall U.N. response

more predictable and better. ‘The cluster approach

should make a significant improvement in the qual-

ity, level and predictability of the response to crises

of internal displacement and represents a substantial

strengthening of the ‘collaborative response’’.241 At the

same time that several organizations have assumed

specific functions, UNHCR has finally agreed to en-

large its role and assumed the leading responsibility for

protection, as well as camp management and emer-

gency shelter for IDPs.242

‘As protection cluster lead agency at the country

level, UNHCR is both the overall coordinator and the

specific focal point for three areas, namely: protection

of persons with specific protection needs; prevention

and response to threats to physical safety and secu-

rity and other human rights violations (with OHCHR);

and logistics and information management support’.

240 For further information see Inter-Agency Standing Commit-tee (IASC) Guidance Note on Using The Cluster Approach to Strengthen Humanitarian Re-sponse, 24 November 2006.

241 Ibid., at 2.

242 UNHCR ‘Policy Framework and Implementation Strategy: UNHCR’s role in support of an enhanced humanitarian response to situations of internal displace-ment’ January 2007, para 9.UNHCR, Informal Consultative Meeting ‘The Protection of IDPs and the Role of UNHCR’, 26 February 2007.

72

Therefore, UNHCR has been assuming these tasks

in some countries since January 2006, becoming the

lead protection agency for IDPs. However, some con-

cerns still remain, such as the possible conflict of inter-

est that has sometimes arisen from UNHCR in assist-

ing and protecting both refugees and IDPs,243 as well

as the certain politicization that UNHCR sometimes

engaged in relation to the protection of IDPs arisen

from armed conflicts. UNHCR has faced challenges

such as negotiating access to the victims, coopera-

tion with the military, and the risk of being manipu-

lated by external powers. Moreover, the agency only

has the capacity to care for approximately 6.6 mil-

lion people of the 23-25 million IDPs in the world.244

It has been considered that human rights should be

integrated into all activities for the internally dis-

placed.245 Consequently, the UNHCR has adopted a

human rights approach in its new leading role and, as

discussed, has developed a working relationship with,

among others, human rights institutions.246 In addition,

‘UNHCR considers it imperative to avert the emer-

gence of protracted IDP situations (…)’ and is trying

to orientate its activities and operations on behalf of

the IDPs to ‘the attainment of durable solutions, includ-

ing the voluntary return of IDPs to their former place

of residence, long-term or permanent settlement in

areas to which they have been displaced, or volun-

tary relocation to another part of their own country.’

Therefore, ‘the Office will establish, in cooperation with

its partners, will establish benchmarks and strategies

for the progressive withdrawal of its presence and

programs in situations of internal displacement.’ 247

Therefore, the additional increased presence of the Of-

fice of the High Commissioner for Human Rights (OH-

243 UNHCR‘s in country pres-ence and IDP protection has sometimes been used as an excuse for States to close their borders, arguing that protection is already available inside the country. Phuong, at 502. How-ever, the ‘IASC Principals has provided a mechanism to ensure timely identification of another agency to assume leadership in protection should UNHCR deter-mine that the protection of refu-gees or the right to seek asylum is being undermined’ UNHCR, ‘The Protection of IDPs and the Role of UNHCR’, para 50.

244 UNHCR, Internally Displaced Persons, Questions and Answers, B.Heger/Col (2006), at p. 12.

245 See Phuong, The Interna-tional Protection of Internally Dis-placed Persons, at p. 153.

246 See UNHCR ‘Policy Frame-work and Implementation Strat-egy: UNHCR’s role in support of an enhanced humanitarian response to situations of internal displacement’, at section IV Pro-tection and human rights’, paras 26-28.

247 See UNHCR ‘Policy Frame-work and Implementation Strat-egy: UNHCR’s role in support of an enhanced humanitarian response to situations of internal displacement’, at section V Du-rable Solutions., paras 29-31.


73

CHR or the Office) in the field is very important.248 The

humanitarian work carried out by several organizations

need to be complemented by active human rights mon-

itoring and reporting in order to diminish situations and

human rights violations concerning, in our case, IDPs.

Today, the Office is, with UNHCR, the leading agency

of prevention and response to threats to physical safety

and security and other human rights violations,249 and is

also responsible for the area ‘rule of law and justice’,250

with UNHCR and the United Nations Development pro-

gram (UNDP). The Office, with UNICEF (United Nations

International Children’ Emergency Fund) , has also the

role of deciding which alternative agency is willing and

ready to assume the leadership of the protection cluster

when UNHCR is unwilling to do it for reasons of con-

flict of interest. 251 The Office is also the leading agency

of the global protection cluster, with UNHCR and UNI-

CEF, in disaster situations or in complex emergencies

without significant displacement.252 This last shared

role only dealing with IDPs resulting from ‘natural or

human-made disasters’253 could be seen as a limited

role of the Office to Internal Displacement situations as

it is the leading human rights organization in the UN.

However, the general strength of the Office’s role in the

field does not have to be diminished as it can contrib-

ute to the incorporation of human rights into humani-

tarian assistance activities and protection for IDPs.254

UNHCR has established a Policy Development and

Evaluation Service (PDES), replacing the former Evalu-

ation and Policy Analysis Unit (EPAU),255 which is an

internal service. At the global level, UNHCR is account-

able to the ERC and at the country level to the Humani-

tarian Coordinator.256

248 See ‘The OHCHR Role in the Protection of Internally Displaced Persons’, Presenta-tion at the Regional Seminar on Internally Displacement in the Southern African Development Community (SADC) region: by Dr Sihaka Tsemo, OHCHR regional representative for Southern Af-rica, 24-26 August 2005.

249 UNHCR, Informal Consulta-tive Meeting ‘The Protection of IDPs and the Role of UNHCR’, 26 February 2007, para. 33.

250 Ibid., para 32.

251 Ibid., para 50.

252 Protection for disasters, as well as for other civilians af-fected by conflict (other than IDPs). Inter-Agency Standing Committee (IASC) Guidance Note on Using The Cluster Ap-proach to Strengthen Humani-tarian Response, 24 November 2006, at 6.

253 Ibid., para 21.

254 The OHCHR has recently prepared various country-spe-cific and thematic mandates reports presented in the 4th Ses-sion of the Human Rights Coun-cil, 15 March 2007.

255 Report by the UNHCR ‘Ex-ecutive Committee of the Gener-al Assembly High Commission-er’s Programme’, A/AC.96/1029 Fifty-seventh session, 18 July 2006.

256 Inter-Agency Standing Com-mittee (IASC) Guidance Note on Using The Cluster Approach to Strengthen Humanitarian Re-sponse, at p. 9-10.

74

Concerning the Internal Displaced Division (IDD or

Division), it started a process of downsizing in 2006.

In October the Coordinator’s proposal to trans-

form the Division into a Geneva-based Displace-

ment and Protection Support Section (DPSS), and

as of January 2007, was endorsed by stakehold-

ers. Several key issues concerning internal dis-

placement have been established for this in 2007.257

The cluster approach has been implemented in sev-

eral operations and the Policy Development and Evalu-

ation Service of UNHCR has evaluated these.258 It is,

however, too early to examine the impact that the new

approach, as well as the institutional changes that

may have taken place. Nevertheless, it seems that

the assignment of concrete responsibilities by several

organizations under the leadership of the UNHCR in

the global protection cluster, as well as the increasing

human rights approach in their field of activities, can

result in better assistance and operational protection

of IDPs.

257 OCHA Annual Report 2006, at p. 17.

258 UNHCR, Policy Develop-ment and Evaluation Service, Real-time evaluation of UN-HCR’s IDP operation in Eastern Chad, PDES/2007/02 - RTE 1 July 2007; Real-time evaluation of UNHCR’s IDP operation in Liberia, PDES/2007/02 - RTE 2 July 2007; Real-time evaluation of UNHCR’s IDP operation in Uganda, PDES/2007/02 - RTE 3 August 2007.


77

ConClusIon

78

Conclusion

Even if the two categories of displaced persons (In-

ternally Displaced Persons and refugees) share many

similarities, and are concerned with parallel issues,

they have not been given the same legal status be-

cause the protection they require is different in nature.

However, a separate legal definition of internally dis-

placed persons has not been deemed advisable either,

as it has been considered practically impossible and

morally questionable. Therefore, no international con-

vention has been established and IDPs have not spe-

cifically been protected by anyone.

Nevertheless, an operational definition of IDPs has

been established, and the international community has

tried to address this lack of protection. The Guiding

Principles on Internally Displaced Persons have be-

come the applicable instrument in defense of those

persons, as well as the guidance to the Representa-

tive of the Secretary General on IDPs, to States, in-

tergovernmental and non governmental organizations,

and other involved authorities, groups and individuals.

They have identified the causes and consequences of

internal displacement, restated legal norms, and es-

tablished their specific needs and rights and the duties

of national authorities as well as international humani-

tarian organizations. However, even if the Guiding Prin-

ciples contain numerous rules from treaty law, they are

not legally binding. Therefore, their incorporation into

domestic legislation has been their most effective way

to ensure state compliance. Nevertheless, even though

they have developed four models of policies and laws,

they have not fully addressed important issues, that is,

the definition of IDPs. In addition, only a few countries

have incorporated them.

Conclusion

79

Therefore, other mechanisms have been necessary in

order to try to address the factual lack of protection of

IDPs. The charter and the treaty body system have es-

tablished mechanisms to specifically contribute to that

cause. Even if subject to political will, both systems

have also, paradoxically, been politically influential.

Public condemnation and publicity, as well as the threat

of them, have sometimes resulted in States changing

their acts and/or policies toward their population. How-

ever, politicization of the Commission on Human Rights,

as well as the inefficacy and inefficiency of the report-

ing mechanism, have made their task in addressing IDP

situations difficult. Nevertheless, a redefinition of the

charter and the treaty body has started and it is hoped

that the protection of IDPs will be better highlighted.

Regional mechanisms addressing IDP protection which

are able to deal with individual human rights violations

have also been established, other than the U.N. and its

institutions. The European Court of Human rights has

dealt with and condemned IDP situations, alleging a vi-

olation of Article 3, 8, and 13 of the European Conven-

tion, as well as of Article 1 of Protocol 1. Approximately

1,500 more cases of a similar nature from southeast

Turkey are currently registered before the Court to be

addressed. Even if the African Commission has much

more limited powers than the other human rights sys-

tems, it has condemned some violations of the African

Charter and has highlighted the importance of submit-

ting communications concerning IDP situations. More-

over, important developments have been established,

such as a Special Representative dealing with IDPs in

Africa; including two Protocols and a Committee also

dealing with them in the Great Lakes region, and will

enhance the commitment of some States in that re-

gion. In addition, a Human Rights Court will soon be

80Conclusion

established, as well as an IDP Convention, which could

put Africa at the forefront of protection of IDPs. The In-

ter-American System has evolved, in dealing with two

cases of IDPs, where the State of Colombia has been

condemned for having violated Articles 4, 5.1, 5.2, 6, 8,

9, 11.2 and 25 of the Inter-American Convention. The

Guiding Principles have been clarified and endorsed

by the court. Moreover, monetary and non-monetary

reparations have been established, and durable solu-

tions have been officially recognized for the first time

as a remedy of reparation by a human rights court.

However, even though some positive developments

have occurred in the human rights courts contributing

to their protection, the volume of jurisdiction on IDPs

remains modest. Nevertheless, such developments

should be viewed as a step forward in the protection

of IDPs.

Concerning IDP situations in times of war, we have

to refer to the legal framework developed by the Ge-

neva Conventions and their Additional Protocols. Even

though provisions do not specifically mention IDPs, we

deduce from them that the general rules of IHL pro-

tect civilians, preventing IDP situations. Explicit pro-

hibitions against forcible displacement of civilians do

exist. IHL also protects them once the displacement

has occurred. However, IHL is not always respected

and, therefore, IDPs especially are not protected. The

dissemination of knowledge of IHL would serve as a

protective measure for this population. Consequently,

greater effort should be made to apply it.

On an International level, and concerning gross human

rights violations in relation to IDPs, the Tribunals es-

tablished have also contributed to that protection as

several cases related to IDPs have been considered in

81

the ICTY under the category of ‘crimes against human-

ity’ and ‘grave breaches of the Geneva Conventions’.

Moreover, the ICC has added ‘forcible transfer’ in its

Statute to cover displacement within a State. In the

ICTY, the judges had differed as to whether IDP could

be subsumed within the crime against humanity of de-

portation. Recently, the distinction between ‘forcible

transfer’ and ‘deportation’ seems to have been made

clear to them, distinguishing between the terms inter-

nal and external displacement. However, they consider

internal displacement a crime against humanity under

the residual category of ‘other inhumane acts’, which

in my opinion seems relegating the importance of inter-

nal displacement compared to the attention devoted to

external displacement. Nevertheless, the inclusion of

the term ‘forcible transfer’ in the ICC should be seen as

a positive development in favor of IDP protection, as it

can be applied in future cases in the ICC, and be used

as a precedent for future tribunals. Concerning the pro-

tection of IDP victims and witnesses in the tribunals,

it has to be highlighted that a Victim and Witnesses

Section exists in the ICTY and the ICC, as well as some

legal provisions in the Rome Statute as embodied in

article 68, 75 and 87. However, some important limi-

tations exist and complete protection is not provided

to them. Moreover, limitations could also be named in

relation to the tribunals in general, their mandates and

their scope of jurisdiction and resources. Therefore, the

complete efficacy and the complete protection of IDPs

by these tribunals could be questioned.

It could be said that the proliferation of the three pil-

lars of the protection of persons, and the emergence of

international and regional human rights tribunals, have

contributed to IDP protection. However, as already dis-

cussed, a better implementation of the Guiding Prin-

82

ciples on an international and a national level, a better

efficacy of the human rights system, a greater applica-

tion of the law in time of war, a greater development of

regional mechanisms, as well more sensitivity to IDP

issues and IDPs, victims and witnesses in the interna-

tional tribunals, along with better efficacy, would con-

tribute to the improvement of such protection.

There has been much debate about addressing IDP situ-

ations in the field. After rejecting the possibility creating

a new agency specifically dealing with IDPs, UNHCR

has been increasingly addressing IDP situations. Simul-

taneously, the U.N. has been establishing a ‘collabora-

tive approach’ among several organizations. However,

assistance and protection in the field remained weak

and the evaluations made suggested a change.

Today, the ‘cluster approach’ has been established,

where the work by several organizations is still provi-

ded, but a better assignment of responsibilities has

been established, with an important role for UNHCR.

Human rights shall be integrated into all activities for

the internally displaced. Therefore, UNHCR has been

assigned as the leader of the global protection cluster,

adopting a human rights approach where even du-

rable solutions for IDPs are contemplated. Moreover,

there has been a general increase in the OHCHR’s

role in the field that might contribute to the incorpora-

tion of human rights into humanitarian assistance and

protection for IDPs.

The International Displaced Unit has recently been

transformed by the Displacement and Protection Sup-

port Section. Even if it is too early to evaluate the im-

plications that these changes might have been able

to produce, it seems that the assignment of concrete

Conclusion

83

responsibilities by several organizations can result in a

better operational protection of IDPs.

However, a further evaluation of the protection and as-

sistance provided today to IDPs should be carried out

soon, and the possibility of creating a new High Com-

missioner or of increase funding allocated to the UNHCR

should remain open, if many problems pertaining to the

protection of IDPs arise. Moreover, due to the fact that

U.N. agencies face limitations owing to their inter-gov-

ernmental nature in addressing IDP situations in politi-

cally sensitive contexts, there is also a need for a strong

and independent non-governmental counterpart. 259

In addition, it seems to me that human rights protec-

tion still depends very much on the will of the states.

Therefore, I believe that the possibility of establishing

an international Convention on Internally Displaced

Persons needs to be seriously reconsidered to fully

provide protection to IDPs. On the one hand, the es-

sential incorporation of the Guiding Principles in na-

tional legislation and the state designed to prevent or

protect internal displacement would be more likely to

take place if an international Convention on Internally

Displaced Persons were instituted. The process of

drafting such a convention would reopen the debate

about the protection of IDPs. On the other hand, the

adoption of this Convention could directly contribute to

the protection of IDPs in the states that ratify it.

259 IDMC, Appeal 2007 and fu-ture strategy, at 10.

84

Table of cases

Baena Ricardo and others v. Panama, IACHR, •

Judgment, 2 Feb. 2001, 41.

Blagojevi• ć (IT-02-60-T), Judgment, 17 January 2005, 46.

Constitutional Tribunal v. Peru, IACHR, 31 Jan. 2001, 41. •

Cyprus v. Turkey, App. No. 25781/94, 35 Eur. H.R. Rep. •

731 (2001), 37.

Do• ğan and others v. Turkey, ECHR, Judgment 29 June

2004, 38.

Kupreški• ć et al. (IT-95-16-T), Judgment, 14 January

2000, 47.

Krsti• ć (IT-98-33-T), Judgment, 2 August 2001, 47.

Milosevic (IT-02-54-T), Decision on Motion for •

Judgment of Acquittal, 16 June 2004, 47.

Natelic et al, (IT_98-34-T), Judgment, 31 March 2003, at 47. •

Staki• ć (IT-97-24), Judgment, 22 March 2006, 47.

Marti• ć (IT-95-11), Judgment, 12 June 2007, 48.

The Maripan Massacres v. Colombia, IACHR, •

Judgment of September 42, 43

The Ituango Massacres v. Colombia, IACHR, Judgment •

of July 42, 43

Yôyler v. Turkey, ECHR, Judgment, 23 July 2003, 37.•

Conclusion

87

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108

Table of Abbreviations

ACHPR African Commission on Human and Peoples’ •

__Rights

ERC Emergency Relief Coordinator•

IASC Inter Agency Standing Committee •

ICC International Criminal Court•

ICESCR International Covenant on Economic, Social •

--and Cultural Rights

ICCPR International Covenant on Civil and Political •

--Rights

ICRC International Committee of the Red Cross•

IDPs Internally Displaced Persons•

GC Geneva Conventions •

OAU Organization of the African Union•

OCHA Office for the Coordination of Humanitarian •

--Affairs

OHCHR United Nations High Commissioner for Human •

--Rights

SP Special Rapporteur•

UN United Nations•

UNHCR United Nations High Commissioner for Refu-• -

--gees

UNICEF United Nations International Children’ Emer-• --

---gency Fund

VWS Victims and Witnesses Section•

Bibliography

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