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The War Report: Armed Conflict in 2014 edited by Bellal, Annyssa (1st December 2015)

Part III Thematic Chapters, B Protection, 6 Protection of IDPs in armed conflict in 2014: a critical review of law and practice, A The protection of IDPs under international law

Marina Mattirolo

From: The War Report: Armed Conflict in 2014

Edited By: Annyssa Bellal

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 April 2019

A.  The protection of IDPs under international law

The international system set up in the aftermath of the Second World War to deal with uprooted populations fleeing persecutions did not protect displaced people inside their own countries. According to their mandate, both the UN High Commissioner for Refugees and the 1951 Convention Relating to the Status of Refugee (‘Refugee Convention’) only provided protection and assistance to those who:

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.11

The definition of refugee explicitly excluded persons that, while fleeing persecution, were not outside their country of origin. This is because, at the time of the drafting and adoption of the Refugee Convention, the vast majority of States believed that internally displaced persons had to be the exclusive responsibility of their governments. Unlike refugees who are aliens in a foreign territory, IDPs can still benefit from the protection of their country of origin and therefore are not in need of international protection.

(p. 450) The Emergence of IDPs in the International Humanitarian Agenda

In the 1990s the phenomenon of internally displaced persons (IDPs) emerged as one of the more ‘challenging humanitarian, human rights and security issues’12 that the international community had to face.

Unlike refugees, IDPs did not have a well-established international system to protect and assist them or help them with their recovery and reintegration. When at the end of Cold War, internal conflicts started proliferating in places such as the Balkans, Afghanistan, and Somalia, causing the number of internally displaced persons to grow dramatically, IDPs started becoming an issue of international concern. A limited group of NGOs, including the Commission of Churches on International Affairs and the Quakers,13 began pressuring mechanisms and agencies of the United Nations system to take action against the lack of protection of people uprooted inside their own countries. Many of the displaced could not access food, medicine, or shelter and were particularly exposed to attacks, sexual violence, and other human rights abuses. In 1991, UN Secretary-General Javier Perez de Cuellar stated:

We are clearly witnessing what is probably an irresistible shift in public attitudes towards the belief that the defence of the oppressed in the name of morality should prevail over frontiers and legal documents.14

A year later, the UN Human Rights Commission took up the issue of IDPs and nominated Francis Deng as Representative of the Secretary-General on Internally Displaced Persons.15

States experiencing displacement began recognizing that addressing the needs of IDPs was necessary in order to achieve stabilization and conflict-resolution. Western States from their part, witnessing with concern the increasing number of refugees arriving on their borders in the post-Cold War era, thought that addressing the issue of and providing assistance to IDPs in their own countries would eliminate reasons for them to flee and seek asylum in Europe and North America.16 The assumption (p. 451) that IDPs exclusive responsibility rested with their governments started to be questioned leaving space to the idea, backed by the newly appointed Representative of the Secretary-General, that when governments are not willing or not able to protect their displaced populations, the involvement of the international community becomes a necessity.

The fact that they are displaced internally does not mean that the international community does not have a major responsibility to protect them.17

Humanitarian organizations such as the International Committee of the Red Cross (ICRC) and the UN High Commissioner for Refugees (UNHCR) had begun assisting IDPs since the 1970s, but it was during the humanitarian crises of the 1990s, when IDPs started to outnumber refugees, that it became clear that a more active engagement was necessary. That was the time where the High Commissioner for Refugees, Sadako Ogata, whose mandate excluded the protection of IDPs, asked herself:

Should we follow the legal dictate of not exercising our mandate inside the border and thereby refrain from helping those prevented from crossing or should we stand more on realistic humanitarian grounds and extend whatever support we could?18

The answer was clear and not long after the High Commissioner decided to expand the ‘operational coverage’ of UNHCR in different internal crises to include IDPs and other affected populations.19

UNHCR and other humanitarian organizations soon realized that they needed a conceptual and legal foundation as a basis for their greater involvement with IDPs. That is when the role of the newly appointment Representative of the Secretary-General on Internally Displaced Persons (RSC) with the mandate to examining the human rights issues related to the protection of internally displaced persons became central.20 Before looking at the Representative of the Secretary-General’s work that helped towards the development of the Guiding Principles on Internal Displacement, the following sections include an analysis of the protection already provided to internally displaced persons by international humanitarian law and human rights law.

(p. 452) The Protection of IDPs under International Humanitarian Law

International humanitarian law (IHL) seeks to limit the effects of armed conflict and to protect persons who are not or no longer participating in the hostilities. IDPs are part of the civilian population and as such are entitled to the protection afforded to all civilians under IHL. Violations of IHL, such as attacks against the civilian population, ill-treating civilians, destruction of property, sexual violence, and restricted access to health care and other essential services are some of the main causes generating displacement in contemporary armed conflicts. Hence, it has been argued that ‘not only IHL protects victims of internal displacement but its rules, if scrupulously applied, would make it possible to avoid the majority of displacement’.21

Most of the IHL provisions relating to the prevention of displacement and the protection of IDPs are contained in the four Geneva Conventions of 1949, Additional Protocol I and II of 1977, as well as in customary international humanitarian law.22 States have the responsibility to implement these provisions in their internal legal system. As of today, the international normative framework dedicated to IDPs is of a soft law nature and most branches of international law are not accepted as being applicable to non-State armed groups, the most developed international legal norms protecting conflict-affected IDPs and binding upon all parties to an armed conflict are still to be found in IHL.23 The following two sections will analyse IHL provisions related to the protection of conflict-induced IDPs during the three phases of displacement.

The General Protection of IDPs as Part of the Civilian Population under IHL

When looking at the whole body of IHL, one could be fairly surprised in not finding a single mention of ‘internally displaced persons’ in the texts. This is because, as (p. 453) previously said, IDPs are above all part of the civilian populations whose protection is the very raison d’être of this branch of international law.24

IDPs are thus protected by all IHL rules related to the treatment of civilians. They should be treated humanely, and should not be discriminated against on the grounds of their displacement or for any other reason. IDPs are also protected from torture and other forms of ill-treatment, arbitrary deprivation of life and liberty, collective punishment, acts of terrorism, taking of hostages, slavery, and pillage.25 Provisions regulating the conduct of hostilities also protect IDPs as part of the civilian population. These include the principle of distinction and the other central rules derived from it such as the prohibition of direct attack on civilians or civilian objects, the principle of proportionality, the obligation to take precautions in attacks and the prohibition of acts that threaten the civilian population’s ability to survive.26

The Special Protection of IDPs Under IHL

International humanitarian law specifically prohibits different forms of forced displacement,27 namely ‘forcible movement’, ‘forcible transfer’ or ‘deportation’ of civilians whether within the borders of a country or across international borders.28 Forced displacement is a serious violation of IHL and may amount to a war crime and a crime against humanity.29

Displacement of civilians can be considered by the authorities, exceptionally and temporarily, when justified by imperative military reasons or if the security of the population so demand.30 ICRC Commentary to Article 17 of Additional Protocol I clearly explains how the wording ‘imperative military reasons’ should be interpreted:

Military necessity as a ground for derogation from rule always requires the most meticulous assessment of the circumstances. … The situation should be scrutinized most carefully as the (p. 454) adjective ‘imperative’ reduces to a minimum, cases in which displacement may be ordered. Clearly, imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group.31

In order to be lawful, displacement of civilians must also be ‘exceptional’ and ‘temporary’. Exceptional, in the sense that the prohibition of forced displacement is the rule and that any displacement that may occur during the conflict must remain the exception; temporary, meaning that displaced persons should be allowed to return by the concerned party within the shortest possible period.32 Should displacement happen, protected persons may only be evacuated to reception centres in the occupied territory in case of an IAC, or in the national territory in case of a NIAC.

During displacement, IHL rules request parties to the conflict to take all possible measures in order for the civilian population to be received under satisfactory conditions of shelter, hygiene, health, safety, and nutrition, and that members of the same family are not separated.33 In addition, the parties to the conflict must fulfil secure adequate food supplies to the displaced persons and if they are unable to do so they should not hamper humanitarian assistance from other impartial humanitarian bodies.34

IHL provides special protection to children who are displaced and/or separated from their families as a result of an armed conflict. In IACs, parties to the conflict must take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families, are not left to their own resources and that their education is facilitated in all circumstances.35 In NIACs, children shall also receive an education, including religious and moral education.36 As in situations of displacements children are more vulnerable to forcible recruitment into armed forces or armed groups, it has to be kept in mind that IHL, as a general rule, prohibits recruitment, forcible or voluntary, of children under fifteen years of age.37 Also, persons over fifteen years of age shall not be subject to discriminatory practices of recruitment as a result of their displacement.

(p. 455) As for the right to voluntary return of displaced persons, IHL provides that they shall be allowed to return to their homes or places of habitual residence as soon as the security concerns have ceased to exist in the affected area.38 Rule 133 of the ICRC Study on Customary IHL further adds that the property rights of displaced persons must be respected. Finally, in case of separation of family members because of displacement, parties to the conflict must take all appropriate steps to facilitate their reunification.39

The Protection of IDPs Under International Human Rights Law

As citizens or residents of their state, IDPs are entitled to all human rights recognized in the said country.40 However, the factual situation characterizing displacement—persons having to leave their homes involuntary or under coercion and being unable to return—makes IDPs particularly vulnerable and creates special needs that are qualitatively different from those of victims of other situations of violence but not forced to flee.41 Particular needs for internally displaced persons are finding a shelter while away from their homes and protection against being coercively returned to danger zones. They also have to deal with the loss of their livelihoods and property and the subsequent difficulties in trying to regain them. Another major difficulty for IDPs in replacing their documents such as identifications cards, school leaving certificates, property deeds in order to access services. IDPs are often unable to exercise their right to vote since this can usually only be done in their place of habitual residence. Moreover, because of their situation and the consequent loss of social networks, IDPs suffer greater risk of being exposed to a variety of human rights abuses such as sexual violence or forced recruitment of children into armed forces or armed groups. They are also more vulnerable to health hazards and have restricted access to health care and other essential services.

(p. 456) Key Provisions Protecting IDPs Under International Human Rights Law

Under international human rights law (IHRL), the prohibition of arbitrary displacement can be found in Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR) stating everyone’s right to liberty of movement and freedom to choose his or her residence. This includes the right not to leave his or her residence hence not to be displaced.42

During displacement, in addition to those human rights that are also vital for the non-displaced, such as the prohibition of torture and arbitrary deprivation of life, several categories of rights and guarantees are particularly relevant for IDPs. The first one is the general prohibition of discriminations based ‘on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.43 The respect of the prohibition of discrimination is specifically important for IDPs when associated with the exercise of political rights. As a matter of fact, there are many cases of IDPs being prevented from voting and to stand for election on the basis that those are rights that may be exercised only in one’s place of residence.44

The right to freedom of moment guarantees IDPs the right to flee from danger zones and seek refuge in another part of the country as well as the right to leave the country and seek asylum elsewhere.45 IDPs enjoy the right not to be forcibly returned to zones where their life, safety, liberty, or health would be at immediate risk.46 Also derived from the right to freedom of movement is the right of IDPs to move freely in and out of their camp and the prohibition, unless internment is unavoidable, of closed camps. Even when internment is lawful, it should end immediately after the conditions rendering it absolutely necessary ceased to exist.47

Both the Inter-American and the European Courts of Human Rights have emphasized in their jurisprudence, that the right to freedom of movement, the right to property or the right to private life and home create positive obligations for States to allow return if possible, and/or to create conditions and provide the means to enable return (p. 457) voluntarily in safety and dignity to their original place of residence.48 Finally, derived from the right to freedom of movement is also the right of IDPs, once displacement has ended, to either voluntarily return to their original place of residence, to stay in the area in which they were displaced or to resettle in another part of the country.

During displacement, IDPs are often incapable of attending their most basic needs. Consequently, in order to receive food, housing, medical care, education, and other services they depend on humanitarian assistance. They have the possibility therefore to invoke their correspondent economic and social rights guaranteeing access to such items and services under human rights law.49 It is interesting to note that in several cases, the Inter-American and the European systems have taken the position in their jurisprudence that conflict-induced IDPs in some situations can invoke forced displacement as an obstacle to the fulfilment of their right to a private and family life in addition to hampering their right to an adequate standard of living.50 The European Court of Human Rights for instance considered ‘the deliberate burning of homes by security forces’ to amount, inter alia, to a violation of the right to respect to private and family life.51 The Inter-American Court issued an analogous judgment in the case of Ituango Massacres v Colombia, which also dealt with the burning of homes and possessions but by paramilitary forces. The Court considered it to be a violation not only of the right to home but also of the right to private life, since: ‘the individual’s home and private life are intrinsically connected, because the home is the space in which private life can evolve freely’.52

As previously mentioned, IDPs often need to have their essential documents such as identity cards, passports, birth or marriage certificates reissued during displacement. In relation to this, it has been argued that the right to be recognized as a person before the law (Article 16 ICCPR) may be interpreted as implying that the de facto exercise of this right in the case of IDPs cannot be inhibited by requirements, such as that the document in question can only be issued at a persons’ habitual place of residence, which they are unable to fulfil.53

Footnotes:

11  See Art. 1(A)(2) of the Convention Relating to the Status of Refugee, 1951, emphasis added.

12  Cohen, R., 2014, ‘Protection of Internally Displaced Persons: National and International Responsibilities’. In Research Handbook on International Law and Migration, part IV, edited by Chetail V. and Bauloz, C., Cheltenham: Edward Elgar Publishing, p. 589.

13  Contat Hickel, M., 2001. ‘Protection of Internally Displaced Persons Affected by Armed Conflict: Concept and Challenges’, International Review of the Red Cross, September, vol. 83, no. 843, p. 700.

14  UN Press Release, UN Doc. SG/SM/4560, 24 April 1991.

15  Commission on Human Rights, Internally displaced persons, 5 March 1992, UN Doc. E/CN.4/RES/1992/73.

16  Cohen, R., ‘Protection of Internally Displaced Persons’, p. 590.

17  Cohen, R., 2010, ‘Reconciling R2P with IDP Protection’, Global Responsibility to Protect, vol. 2, no. 1-2: 15–37 at p. 17.

18  Ogata, S., 2005, The Turbulent Decade, New York: W. W. Norton & Co., p. 30.

19  Ibid., p. 19.

20  Cohen, R., ‘Protection of Internally Displaced Persons’, p. 592.

21  Lavoyer, J.-P., 1995, ‘Refugees and Internally Displaced Persons: International Humanitarian Law and the Role of the ICRC’, International Review of the Red Cross, vol. 305, 30 April, p. 162.

22  Civilians fleeing from a non-international armed conflict (NIAC) enjoy protection very similar to that during international armed conflicts (IACs). Nonetheless provision protecting IDPs in NIACs are overall less detailed that those in IACs. Fortunately, customary IHL, composed of rules coming from a general practice accepted as law, fills the gaps left by treaty law in both IACs and NIACs and so strengthen the protection afforded to victims of armed conflict, including IDPs. See Henckaerts J.M. and Doswald-Beck, L., 2005, Customary International Humanitarian Law, Geneva/Cambridge, ICRC/Cambridge University Press.

23  Ojeda, S., 2014, ‘International Humanitarian Law and the Protection of Internally Displaced Persons’. In Research Handbook on International Law and Migration, part IV, edited by Chetail V. and Bauloz, C., Cheltenham: Edward Elgar Publishing, p. 635.

24  Contat Hickel, M., ‘Protection of Internally Displaced Persons’, p. 700.

25  See Common Art. 3 to the four Geneva Conventions; Art. 75 Additional Protocol I; Art. 4 Additional Protocol II; and Chapter 5 of the ICRC Study on Customary IHL, Henckaerts, J.M. and Doswald-Beck, L., 2005, Customary International Humanitarian Law, Geneva/Cambridge, ICRC/Cambridge University Press.

26  See Arts 48, 51-4, and 57-8 of Additional Protocol I; Arts 13 and 14 Additional Protocol II; Chapter I of the ICRC Study on Customary IHL, 2005.

27  For a detailed analysis on what is ‘forced’ displacement as opposed to ‘voluntary’ displacement and the legal consequences they entail, see Ojeda, S., ‘International Humanitarian Law’, p. 639.

28  See Art. 49 of Geneva Convention IV; Arts 51(7), 78(1) of Additional Protocol I; Arts 4(3)(e) and 17 of Additional Protocol II; Rules 129–130 of the ICRC Study on Customary IHL, 2005.

29  See Art. 147 of Geneva Convention IV and Art. 85(4) of Additional Protocol I.

30  If, for instance, a region is threatened by intense bombing, the competent authorities have the right or the duty to evacuate the region in whole or in part, transferring the inhabitants in places of refugee.

31  Sandoz, Y., Swinarski, C., and Zimmermann, B. (eds.), 1987, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict (Protocol II), Geneva, ICRC/Martinus Nijhoff Publishers, p. 1871, paras 4853–5.

32  Ojeda, S., ‘International Humanitarian Law’, p. 640.

33  See Art. 49 of Geneva Convention IV; Art. 17 Additional Protocol II; Rules 129, 131 of the ICRC Study on Customary IHL, 2005.

34  See Arts 23, 50, 59, 70, and 71 of Additional protocol I; Art. 18 of Additional Protocol II; Rules 55–6 of the ICRC Study on Customary IHL, 2005.

35  See Art. 24(1) of Geneva Convention IV. The same obligation exists for the Occupying power in the territory it occupies, Art. 50(1) of Geneva Convention IV.

36  See Arts 4(3)(a) and 28(2) of Additional Protocol II.

37  See Art. 77(2) Additional Protocol I; Art. 4(3)(c) Additional Protocol II; Rule 136 of the ICRC Study on Customary IHL, 2005 as well as Art. 2 of the 2002 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict raises the age at eighteen years old.

38  See Art. 49 of Geneva Convention IV; Art. 17 of Additional Protocol II and Rules 129 and 132 of the ICRC Study on Customary IHL, 2005.

39  See Arts 26, 27, and 49 of Geneva Convention IV; Art. 74 of Additional Protocol I; Art. 4(3) of Additional Protocol II and Rule 131 of the ICRC Study on Customary IHL, 2005.

40  In times of armed conflict, as previously mentioned, IDPs can also benefit from the protection of IHL.

41  Kälin, W. and Künzli, J., 2009, The Law of International Human Rights Protection, Oxford University Press, p. 502.

42  This interpretation was confirmed by the Human Rights Committee in General Comment No 27, Human Rights Committee, General Comment No 27 (1999), para. 7. Also the Inter-American Court of Human Rights derived the prohibition of forced displacement from the right to freedom of movement, Art. 22 of the American Convention on Human Rights. See, IACtHR, Case of the Mapiripán Massacre v Colombia, Series C, No. 134 (2005), para. 188.

43  Arts 2(1) and 26 of the ICCPR, 1966.

44  Kälin, W. and Künzli, J., The Law of International Human Rights Protection, p. 506.

45  See Art. 12 of the ICCPR and Art. 14 of the Universal Declaration of Human Rights (UDHR).

46  This is based on a similar application of the jurisprudence under Art. 3 of the European Convention on Human Rights (ECHR), Art. 7 of ICCPR, and Art. 3 of the Convention Against Torture (CAT) regarding the inhumanity of forcible return where there is a risk of torture or of deprivation of life.

47  This is derived from an extensive interpretation of Arts 12 and 9 of ICCPR.

48  See IACtHR, Case of Moiwana Community v Suriname, Series C, No. 124 (2005), paras 120–1 refers to the freedom of movement and residence and the right to property, and ECtHR, Dogan and Others v Turkey, App. Nos 8803–8811/02 (2004) which refers to the right to property and the right to private life and home.

49  See Arts 11, 12, and 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Art. 25 of the UDHR.

50  See Art. 8 ECHR, Art. 11(2) ACHR, and Art. 11(1) ICESCR.

51  ECtHR, Akdivar and others v Turkey Judgment, 30 August 1996, §88. For analogous cases see also, ECtHR, Bilgin v Turkey Judgment, 16 November 2000, §108; Ahmet Özkan and others v Turkey Judgment, 6 April 2004, §405, and Dogan and others v Turkey Judgment, 29 June 2004, §159.

52  IACtHR, Ituango Massacres v Colombia Judgment, 1 July 2006, §§194 and 197, see also more recent case: Operación Génesis v Colombia, IACtHR, 20 November 2013, Masacres de el Mozote v El Salvador, 25 October 2012, Masacre de Santo Domingo v Colombia, 5 June 2012.

53  Kälin, W. and Künzli, J., The Law of International Human Rights Protection, p. 507.