IDP

1. Protection of Internally Displaced Persons By Apollo Musa (PHO) and Emily Nyanumba (Physiotherapy)

2. Why IDPS are especially vulnerable • May be in transit from one place to another, may be in hiding, may be forced towards unhealthy or inhospitable environments • Social organization destroyed or damaged • May experience profound psychosocial distress • Removed from sources of income and livelihood • Schooling disrupted • May be displaced to areas where local inhabitants are of different groups or inhospitable • Armed combatants might question loyalty • May lack identity documents

3. IDPs have special needs ... Problems usually not faced by those who remain in their homes: • Lack of shelter and problems related to camps • Loss of property and access to livelihoods • Discrimination because of being displaced • Lack of identity cards • Lack of access to services • Lack of political rights • Restitution of/compensation for lost property • Problems of return and integration

4. ... and are especially vulnerable IDPs run a higher risk than those remaining at home: • to have their children forcibly recruited • to become victims of gender-based violence • to become separated from family members • to be excluded from education • to be without a job • to be excluded from political participation.

5. Protection Gap • Primary responsibility rests with the State • State may be unable or unwilling to provide protection • “Protection Gap”—international community steps in

6. Protection Protection is defined as all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, namely human rights law, international humanitarian law and refugee law. Protection can be seen as having three different dimensions: • Protection as an objective • Protection as a legal responsibility • Protection as an activity

7. Conceptual ideas • Although internally displaced persons have departed from their homes, unlike refugees they have not left the country whose citizens they normally are: • They can invoke all human rights and IHL guarantees available to the citizens of that country. • Applicability of refugee law is not possible.

8. A separate category Why a special category? • Shared characteristics and particular vulnerabilities • Need to delineate the circumstances • Beneficiaries must be identified in order for their needs to be met

9. Definition • "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 generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised State border."

12. The Guiding Principles on Internal Displacement • 1992:Creation of the mandate of the Representative of the UN Secretary General on InternalDisplacement • Areas of activities: • Promoting Respect for the Human Rights of the Internally Displaced • Dialogue with Governments, Non-Governmental Organizations and Other Actors • Strengthening the International Response to Internal Displacement • Mainstreaming the Human Rights of IDPs in the UN System • 1998:GuidingPrinciples on InternalDisplacement

13. The Guiding Principles on Internal Displacement….. • Primary responsibility for protecting internally displaced persons, and all persons within their own country, rests with the national authorities of the country. National responsibility is a core concept of any response to internal displacement. It is a fundamental operating principle of the international community and is routinely emphasized by governments themselves, as a function of their sovereignty. • Yet, it is sometimes the very governments responsible for protecting and assisting their internally displaced populations that are unable or even unwilling to do so, and might even be directly involved in forcibly uprooting civilians.

14. In addition to ensuring the protection of rights in accordance with international law, national responsibility in situations of internal displacement entails: • 1. Preventing displacement and minimizing its adverse effects • 2. Raising national awareness of the problem • 3. Collecting data on the number and condition of IDPs • 4. Supporting training on the rights of IDPs • 5. Creating a legal framework upholding the rights of IDPs • 6. Developing a national policy on internal displacement

15. 7. Designating an institutional focal point on IDPs • 8. Encouraging national human rights institutions to address internal displacement • 9. Ensuring that IDPs participate in decision making • 10. Supporting durable solutions • 11. Allocating adequate resources to addressing internal displacement • 12. Cooperating with the international community when national capacity is insufficient

16. The Rights of IDPs: developments 1998: Guiding Principles on Internal Displacement 2005: World Summit: Recognition as “important international framework for the protection” of IDPs 2009: Convention of the African Union on Protection and Assistance to IDPs – Kampala Convention

17. Content of the Guidelines • Section I: General Principles (1-4) • Section II: Protection from Displacement (5-9) • Section III: Protection during displacement (10-23) • Section IV: Humanitarian Assistance (24-27) • Section V: Post-Displacement Phase (28-30)

18. General Principles • IDP definition • Principle of equality before the law • Principle of non-discrimination • Primary responsibility of the national authorities

19. Country A: Internal Conflict External to Country A Guiding Principles • Human Rights • Law • Dignity • Universal • Inalienable • Indivisible- • Interrelated- • Interdependent • International • Humanitarian • Law • Law of Armed • Conflict • The Geneva • Conventions Peace Conflict Refugee Law (by analogy non refoulement)

20. 5 important points! • All human beings are entitled to fundamental rights & freedoms, including IDPs. • The GP authoritatively consolidate into one document, relevant rights, norms, obligations. The GP are derived from binding, existing law. • Many nations have signed treaties or are subject to HR or IHL—which makes the GP binding upon their actions in their countries. • The GP seeks clarification on unclear areas and fills gaps regarding the particular needs of the internally displaced.

21. Four groups of relevant rights • Rights related to physical security and integrity (e.g., rights to life and to be free of torture, assault, rape, etc); • Basic rights related to basic necessities of life (e.g., the rights to food, potable water, basic health, shelter); • Rights related to other economic, social and cultural protection needs (e.g., the rights to work, receive restitution or compensation for lost property, and education); and • Rights related to other civil and political protection needs (e.g., the rights personal documentation, political participation, access to courts, and freedom of movement).

22. Principle 12 General • Every human being has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention Derived from: UDHR articles 3 and 9 ICCPR article 9 (1)

23. Principle 12 General • Every human being has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention • To give effect to this right for internally displaced persons, they shall not be interned in or confined to a camp. If in exceptional circumstances such internment or confinement is absolutely necessary, it shall not last longer than required by the circumstances. • Internally displaced persons shall be protected from discriminatory arrest and detention as a result of their displacement. • In no case shall internally displaced persons be taken hostage. Applicable To IDPs Applicable To IDPs Applicable To IDPs

24. Principle 17 (1) • Every human being has the right to respect for his or her family life (The ‘General’ principle derived from Universal Declaration of HR, Article 16, the Fourth Geneva Convention; Article 27, & the ICCPR, Article 23)

25. Principle 17 (2-4) • To give effect to this right for internally displaced persons, family members who wish to remain together shall be allowed to do so. • Families which are separated by displacement should be reunited as quickly as possible. All appropriate steps shall be taken to expedite the reunion of such families, particularly when children are involved… • Members of internally displaced families whose personal liberty has been restricted by internment or confinement in camps shall have the right to remain together.

26. GPs address some gaps E.g. Principle 6 • Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.

27. Core humanitarian principles • Do no harm • Humanitarian imperative • Neutrality • Impartiality • Provision of protection

28. STATUS OF GUIDING PRINCIPLES • An authoritative consolidation of rights • Not a substitute for other instruments • Provide guidance on the applicable rights

29. Internally displaced person experience a very special factual situation and, therefore, have specific needs. The GPs restate in more detail those legal provisions which respond to the specific needs of IDPs and make explicit guarantees protecting IDPS that are inherent in IHL and IHRL. Not a binding instrument but a highly authoritative document.

30. Prevention from displacement • Prohibition of arbitrary displacement • Based on policies of apartheid or ethnic cleansing • In situations of armed conflict, unless the security of civilians or imperative military reasons so demand • In cases of large-scale development projects not justified by compelling public interest • In case of disasters unless the safety of persons requires their evacuation

31. Guiding Principle 28 • Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons. • Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration.

32. Evaluation • While there have been enormous advances since the process of drafting the Principles began in 1996, some of the gaps or weaknesses – such as the fact that non-state actors are not, traditionally, bound by human rights, and the option of derogation from human rights – that were identified then are still apparent.

33. Evaluation….. • What are the disadvantages and advantages of the non-binding nature of the Guiding Principles? • An obvious disadvantage of the non-binding nature of the Guiding Principles is the fact that States cannot be held accountable if they disregard them and that, as such, they cannot be invoked in legal proceedings at the domestic level. • Not overestimate this weakness as it is always possible to invoke the hard law that lies behind the Guiding Principles where necessary. • Overall, the non-binding character of the document has been an advantage, and where the Guiding Principles were met with resistance, it was not because of their content but because of a suspicion that they might be binding regardless of all assertions to the contrary.

34. Evaluation….. • The same has happened at the international level where the Inter-American Commission on Human Rights, UN Treaty Bodies, Special Rapporteurs of the UN Human Rights Commission, the General Assembly and even the UN Security Council have referred to the Guiding Principles either as a valid restatement of present international law or as a useful tool for properly addressing situations of internal displacement.

35. Kampala Convention • The Convention builds on international humanitarian law and international human rights law, as well as the Guiding Principles on Internal Displacement. The Kampala Convention's objectives include promoting and strengthening regional and national measures to prevent, mitigate, prohibit, and eliminate the root causes of internal displacement. The Convention also aims to provide for the responsibilities and roles of armed groups and non-state actors with respect both to preventing internal displacement and to protecting and assisting IDPs

36. Before Displacement - preventing displacement from happening • One of the aims of the Kampala Convention is to prevent displacement. It prohibits arbitrary displacement, and requires states to take preventive measures to protect people from displacement in line with their obligations under international law. • It provides that people should be protected against displacement resulting from conflict and violence, discriminatory policies or human rights violations. It also states that displacement should not be used as a method of warfare or as collective punishment. In the case of natural or man-made disaster, forced evacuations should only take place for reasons of health and safety. • It calls on states to establish early warning systems and adopt disaster preparedness and management measures to prevent displacement caused by natural disaster. • In the case of development projects, carried out by public or private actors, forced relocation must be justified by “compelling and overriding public interest”. States must ensure that other alternatives are explored and that socio-economic and environmental impacts are assessed beforehand. States also have a duty to inform and consult people who are likely to be displaced.

37. During Displacement • The Kampala Convention provides that states have the primary responsibility for providing assistance to internally displaced people (IDPs). They are obliged to assess their needs and vulnerabilities and those of the host communities – or to facilitate such assessment – and to provide adequate assistance. • Internally displaced people are entitled to the full protection of their rights on the same basis as other citizens and residents of the country. They should not be discriminated against on grounds of their displacement or any other grounds, such as their race, ethnicity, or political affiliation.

38. Ending Displacement • The Kampala Convention calls on states to seek lasting solutions to internal displacement. It states that internally displaced persons (IDPs) have the right to choose freely between returning home, integrating locally in areas of displacement or relocating to another part of the country. For each of these options, states are responsible for ensuring that the conditions are satisfactory and sustainable. • IDPs must also be provided with information allowing them to make a free and informed choice on whether to return, integrate or relocate elsewhere in the country.

39. Implementation • The Kampala Convention underlines that states have the primary responsibility for providing protection and humanitarian assistance to IDPs. In order to meet that obligation, they have to develop appropriate laws, policies and strategies. • There is not one single way to incorporate international obligations, but in all cases, a few preliminary steps are necessary: assessing the existing national laws and policies, passing necessary laws to address gaps, removing provisions not in line with the Convention, and taking the necessary steps for implementation. • Several African states, including Angola, Burundi, Liberia, Sierra Leone, Sudan and Uganda, have already developed national laws and policies based on the IDP Guiding Principles. Others have drafted laws and policies and some use the Guiding Principles as their main framework for responding to situations of internal displacement.