18 The Need To Institutionalize The Principles Of Prevention and Prohibition of Cruel, Inhuman Or Degrading Treatment As Envisaged By The Convention On Refugees – II

Rohini Sen

1. Outline:

As the crisis of internal displacement is becoming increasingly rampant, the international humanitarian community came together to prevent collateral damage in conflict-ridden areas. Internally displaced people are people who have been forced or obliged to flee their homes in order to avoid the effects of armed conflict and situations of violence. In 1993, at the request of the Commission on Human Rights, the first study of international standards relevant to internally displaced persons (IDPs) was prepared. It was concluded that existing law provided broad protection for the rights of internally displaced persons, but that there were also certain grey areas and gaps in coverage.

With the encouragement of the Commission of Human Rights and the General Assembly, Francis M. Deng proceeded to develop a document setting out the relevant law and addressing the grey areas and gaps, with the help of a team of international legal scholars chaired by Mr. Walter Kälin. The resulting Guiding Principles on Internal Displacement were presented to the Commission on Human Rights in 1998.The Guiding Principles have, since then become an important tool for dealing with internal displacement, and has been welcomed by an increasing number of States, United Nations agencies and regional and non- governmental organisations are applying them as a standard.

The UN Guiding Principles uphold ideas of equality in times of war. While the principles per se are not legally binding, they draw on (binding) international humanitarian and human rights law[9]3 Some of the principles are relevant for the right to adequate food in emergencies and for food aid (principles 1, 3, 4, 10, 18, 24 – 27, 30, etc.)4They mention the need for special care for the vulnerable classes of women, children and the ill. Lastly, the guidelines state the obligation of the state to Return and resettle the displaced in a manner which takes heed of the situation they were in.

2. Objectives:

• To provide a basic understanding of what led to the creation of UN guidelines on internal displacement.
• To provide an overview of what the guidelines lay down for internally displaced persons.
• To study the effects the guidelines have had on the internally displaced population

3. Introduction:

Internally displaced persons (hereinafter referred to as ‘IDP’) have, for long been subject to atrocities and have become collateral damage in conflict areas. A majority of IDPs are civilians who are incapable of protecting themselves and rely on the State for the protection. When the State is in political disruption, they are the first to be affected. Understanding their position become increasingly important and ultimately led to the passing of the UN GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT IN 1998.

4. Learning Outcomes:

• Introduction to the concept of internal displacement of people
• Students will understand the international context of protection of IDP

5. Who are Internally Displaced Persons?

Internal displacement is the coerced movement of persons within their country. The UN guiding principles on internal displacement define internally displaced persons as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.” The involuntary nature of their departure and the fact that they remain in their own country are the two main elements determining who is an internally displaced person.

6. Why were the UN guidelines created?

War has always been one of the main reasons people are forced to abandon their homes. They cause massive displacements in the population. As Ruud Lubbers, United Nations High Commissioner for Refugees, stated in 2001, “Refugees continue to flee persecution in countries at peace, but armed conflict is undeniably the greatest cause of refugee flows today. The nature of conflict has also changed, with the proliferation of internal ethnically or religiously based struggles in which displacement has become an objective, rather than merely a consequence of war. ‘By the end of the Second World War, the number of people who had fled their homes, discreetly labelled “displaced persons,” was estimated to be thirty million.

7. International law and protection of IDPs

No universal instrument specifically addressed the plight of IDPs until 1998 when the UN General Assembly and the UN Commission on Human Rights took note of the Guiding Principles on Internal Displacement. While these Guiding Principles do not constitute a binding instrument, they have received large support from the international community. For instance, in 2009, the African Union adopted the Kampala Convention on IDPs.This regional instrument is an important step forward in the protection of and assistance to IDPs in one of the continents most affected by displacement. IHL contains many provisions concerning the prevention of displacement and the protection of IDPs – mainly in Geneva Convention IV (GC IV) and Additional Protocols I and II (AP I and APII), as well as in customary international law. States have the responsibility to implement these protections in their internal legal framework.

Treaties in place:

• Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, 11 February 1998
• African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (“Kampala Convention”), 22 October 2009
• International Standards Relating to Internal Displacement

8. UN Guiding principles on internal displacement:

The United Nations, in its capacity of an international organisation, constituted the guidelines on internal displacement in the wake of the increasing number of conflict-ridden zones. The guidelines provide direction to the international community, individual nations faced with the problem of internal displacement and all other intergovernmental and non-governmental groups. While no international convention on the rights of internally displaced persons exists, they enjoy the same human rights as all other people within their own country of citizenship or residence. These rights may be articulated in the domestic constitution and legislation as well as international human rights instruments and customary law. In situations of armed conflict, moreover, they enjoy the same rights as other civilians to the various protections provided by international humanitarian law.

The Guiding Principles on Internal Displacement restate in explicit terms the rights of IDPs that are implicit in the more general guarantees of existing international human rights and humanitarian law relevant to the internally displaced. The Principles identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration.

a. General principles disseminated by the guidelines:

The General principles as created by the UN guidelines are:

• Internally displaced persons are entitled to Equal rights and equal obligations as any other persons of the state. No state or organisation is permitted to discriminate against or withhold protection from IDPs on the basis of their race, religion, political affiliation, age, sex, ethnic origin or nationality.
• Universal application of the guidelines is owing to the fact that they are grounded in international law. They represent customary law, international law and international humanitarian law which are all binding sources of law.
• The principle that Sovereignty means responsibility is woven in the guidelines as it assigned states the duty provide security, welfare and liberty to its citizens. The guidelines, in fact, reinforce sovereignty by assigning the duty to protect its citizens to the state.
• Right to seek and enjoy asylum is provided to internally displaced persons who cannot be prevented from seeking refuge in other countries. The country of origin cannot restrict them from fleeing to neighbouring countries and the host countries cannot use the guiding principles as a justification for denying refuge to the IDPs.

b. Protection from displacement:

• Preventing displacement: Principle 6 of the Guiding principles defines arbitrary displacement as:
• When it is based on policies of apartheid, “ethnic cleansing” or similar practices aimed at/or resulting in altering the ethnic, religious, or racial composition of the affected population;
• In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand;
• In cases of large-scale development projects which are not justified by compelling and overriding public interests;
• In cases of disasters, unless the safety and health of those affected requires their evacuation; and
• When it is used as a collective punishment.

The right to be protected from arbitrary displacement is a universal human right. Arbitrary displacement leads to being denied the right to choose one’s residence as well as restricts their freedom of movement. The absolute prevention of displacement is necessary for ethnic cleansing and apartheid where it is used as a collective punishment. Even in cases where displacement is necessary, the guidelines emphasise the fact that it should be temporary and solutions for it must be implemented immediately. One of the key requirements for the prevention of arbitrary displacement is to consult the parties in conflict.

Minimizing displacement and its effects: Several steps can be taken to make the displacement less harmful. The process of displacement can be made more comfortable by paying special attention to the needs of women and children. Also- the location of the settlement site can be made as close to the home community to reduce the expense of the displacement. For instance,

c. Protection during displacement:

Enhancing physical security and freedom of movement:

The State is obligated to work towards the preservation of the basic rights availed to humans. The Right to life, dignity and integrity are those which are often threatened in situation of war or conflict.

Protection against arbitrary arrests, against forcible return to one’s war-ridden home community are other rights availed to IDPs.

Another principle which the guidelines prescribe is that the state must work towards Preserving Family as a unit, where displacement should be done while maintaining Family unity. The state must work towards reuniting separated families and must pay special attention to the Rights of children.

d. Protection of Economic, Social and Cultural rights

All over the world, displaced persons suffer from poor living conditions ranging from poor sanitation, portable water and housing. States should ensure the proper treatment of the displaced persons and assist them in living lives of a reasonable standard.

The guidelines emphasise employing women in the distribution of basic supplies in the relocation areas. This could inculcate women as decision-makers in society and uphold the importance of gender equality in times of conflict.

Other rights that IDPs are entitled to include, the right to medical treatment such that hospitals cannot deny medical treatment. Also, the right to work and own property cannot be taken away from IDPs.

e. The principle of humanitarian assistance:

When State authorities are unable or unwilling to provide assistance to the displaced, international organisations have the right to offer their services and to enjoy rapid and unimpeded access to the displaced. Humanitarian assistance has a wide protection capacity as its aim is to address the urgent needs of the target populations, thereby improving their human rights situation. Yet, if the planning and delivery of humanitarian assistance are not guided by protection objectives and basic principles, the safety and dignity of civilian populations can be put at serious risk and the humanitarian character of assistance can be undermined. Conscientiously planning and delivering humanitarian assistance through a protection lens can greatly expand its protection capacity. Therefore, humanitarian assistance shall be provided consistent with the principles of humanity and impartiality and without discrimination and states should take into account and work to address their protection. For instance, while the Syrian Government has failed to, and was even reluctant to provide humanitarian assistance to refugees, international aid agencies attempted to provide support. Unfortunately, the government prevented them from being able to respond to the needs of all IDPs, irrespective of their locations or political allegiances, in conformity with the humanitarian principle of the neutrality of humanitarian assistance. The Syrian authorities have severely restricted the work of international humanitarian agencies and, except for a few cases, have prevented them from delivering aid to rebel-held areas across front lines and international borders.

f. Return and resettlement:

Internally displaced persons have the right to return to their home community or settle in their host countries. Right to equal treatment is provided to those who have returned or resettled. Also, people have the right to claim their property before they left or compensation of it.

In this manner, the guidelines make sure that internally displaced persons feel accepted in the society they have resettled in or in their home community post their return. It helps them resume their lives post the conflict.

9. The responsibility of National authorities and International organisations:

National authorities have the primary responsibility to provide protection and humanitarian assistance to IDPs within their jurisdiction. (see Guiding Principle 3(1)). These duties may be understood to be threefold – duty to respect, duty to protect and the duty to fulfil.

The duty to respect requires the State to ensure that all agents of the State act in compliance with human rights law and refrain from any act that might interfere with or impair the exercise of rights. As an example, the State must not restrain freedom of movement: people must be allowed to flee to safer areas within or outside the country and IDPs must be able to move freely in and out of camps and settlements.

The duty to protect obliges the State to take all necessary measures to prevent or put a stop to any violations of rights by third parties, including other individuals or groups. The State must also investigate, prosecute and punish violations of rights and ensure that victims/survivors have access to an adequate and effective remedy under domestic law. As an example, if the State is aware, or reasonably should have been aware, that women are being raped or that children are being recruited into a guerrilla group, but does not take action to prevent and put a stop to such acts, it would have failed to fulfil its duty to protect.

The duty to fulfil requires the State to take all possible measures to ensure that individuals under its jurisdiction are able to exercise their human rights. This requires the State to put in place a legal and administrative framework that respects human rights and build national capacity to support the implementation of rights. As an example, ensuring the right to a fair trial requires that an effective judicial system be put in place and ensuring the right to freedom from torture requires that police and prison guards are adequately trained and supervised. In other words, to ensure the realisation of rights, a State must often invest its resources.

International humanitarian organisations and other appropriate actors have the right, and many argue the responsibility, to offer protection of and assistance to the internally displaced where their state is unwilling or unable to. Consent to such an offer should not be arbitrarily withheld by the state, and all authorities concerned should grant and facilitate the free passage of humanitarian assistance and facilitate unimpeded access to the internally displaced.

10. Case study: Internal displacement in Darfur

The Darfur emergency has been called the world’s ‘worst humanitarian disaster’ by UN Under-Secretary-General for Humanitarian Affairs, Jan Egeland. As in Bosnia and Herzegovina a decade earlier the international response in Darfur has largely focused on providing emergency relief. There are more than 11,000 humanitarian workers on the ground in Darfur, but fewer than 100 staff with protection responsibilities, and only a few thousand lightly armed African Union troops with a weak mandate for protection.

The crisis in Sudan’s western region began in 2003 with an attack on government military outposts by insurgents of the Fur, Masselit and Zaghawa tribes. Their immediate grievance was government favouritism toward Arab herdsmen who were increasingly encroaching on black African farmlands. More fundamentally, the rebels saw an opportunity in the ongoing north-south peace process in Sudan to demand for Darfur the same power and wealth sharing arrangements that African tribes in the south and centre of the country were obtaining from the Sudanese national authorities. The government resorted to murdering 70,000 men and deliberately displaced 2 million people, while 200,000 became refugees in neighbouring Chad. Succumbing to the pressure by the UN, the government lifted most of its restrictions on humanitarian organisations and signed an agreement with the United Nations.

Far less progress has been made in the area of protection. When the government refused to comply with Security Council requests to stop attacks on the civilian population, little or no effort was made to enforce the resolutions. The government failed to disarm the Janjaweed, cease helicopter assaults on villages or end the forcible returns of internally displaced persons to their home areas. This led to regional cooperation working towards ‘Africa helping Africa.’

Conclusion

This chapter has introduced the readers to the guiding principles as laid down by the United Nations which govern the protection and rights of the IDP. It furthers the intrinsic right of equality at all the times, even at the time of conflict. Firstly, the reader is introduced to the concept of Internally Displaced Persons and threat being posed to them. Consequent to the same, the UN guideline were laid down to seek protection and of displaced persons. The module also states the treaties which governs to safeguard the refugees and internally displaced persons. The most important guideline conforming to ensure the resettlement of the IDPs is also specifically referred to. It is the utmost duty of the governmental and the nongovernmental agencies to ensure the protection and rehabilitation of the IDPs. The chapter closes with a case study of an internal displacement that took place in Darfur.

Reference

1. GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT- Annotations, 32 Stud. Transnat’l Legal Pol’y 1 2000
2. Walter Kalin, Guiding Principles on Internal Displacement- Introduction (Legislation), 10 Int’l J. Refugee L. 557 (1998)
3. Entwisle, Hannah, Tracing Cascades: The Normative Development of the U.N. Guiding Principles on Internal Displacement, 19 Geo. Immigr. L.J. 369 (2004-2005)
4. Roberta Cohen, Francis M. Deng , Masses in Flight: The Global Crisis of Internal Displacement, African Studies Review
5. Protecting Internally Displaced Persons: A Manual for Law and Policymakers, Brookings
6. Institution—University of Bern :: Project on Internal Displacement, October 2008 http://www.refworld.org/pdfid/4900944a2.pdf
7. Patrick Schmidt, Process and Prospects for the U.N. Guiding Principles on Internal Displacement to Become Customary International Law: A Preliminary Assessment, 35 Geo. J. Int’l L. 483 (2003-2004)
8. Jean-Philippe Lavoyer,  Comments  on  the  guiding  principles  on  Internal  Displacement, International Review of the Red Cross, 1998. https://www.icrc.org/eng/resources/documents/misc/57jpg9.htm
9. Questions and Answers about IDPs, Office of the High Commissioner of Human Rights, United Nations Human Rights, http://www.ohchr.org/EN/Issues/IDPersons/Pages/Issues.aspx
10. Elizabeth Ferris, Ukraine’s internally displaced: 1 million and rising, Feb 12, 2015 http://www.brookings.edu/blogs/order-from-chaos/posts/2015/02/12-ukraines-internally-displaced-ferris