Protection of internally displaced persons:
A milestone with multiple challenges
by Rosário Tomé
Heads of State at the World Summit in 2005 recognised the 1998 Guiding Principles on Internal Displacement as an “important international framework for the protection of IDPs”. To what extent does the legal framework advance the protection of Internally Displaced Persons?
Armed conflict, ethnic cleansing, harmful cultural practices, apartheid, unresolved tensions, climate change and other phenomena force people to move within states. By the end of 2019, the total number of internally displaced persons (IDPs) reached a record high of 50 million (Ford, 2020). Contrary to refugees, a universal treaty specific to IDPs’ needs was missing in the international system.
The Representative of the UN Secretary General on IDPs, Francis Deng, developed the 1998 Guiding Principles (GP), a milestone framework that codifies Human Rights principles, rejecting temporal and spatial limitations in favour of protections that must be available to IDPs during every stage of their displacement journey.
By analysing the description of IDPs, the notion of state as responsibility and the hardness of the GP’s soft law nature, this essay argues that whilst non-binding, the GP have emerged as the most authoritative and transformative manifestation of international minimum standards applicable to IDPs. Many, if not in their entirety, may constitute customary international law in the future, grounded on state practice. However, flaws may be observed in all three aspects.
Durable solutions require political willingness, a desire to not exclude forced migrants based on their geographical location, and thus to refuse dividing people between deserving and undeserving, and a robust system that is in constant dialogue with humanitarian and development aid.
A crucial area to which the GP contributed was in the description of IDPs. Its 2 key elements involve: (1) the involuntary/coercive nature of movement and (2) remaining within national borders.
Combined with the inclusion of particular displacement causes, the GP combat myopic definitions of IDPs as persons who have been “uprooted by persecution and conflict”. These would exclude displacement caused by natural disasters, climate change and development initiatives that induce displacement. The description’s employment of a qualifier too ensures different circumstances causing mass uprooting are acknowledged, ensuring their non-exclusion and allowing the description to expand.
However, as violence escalates, we do not observe a proportional number of persons crossing international borders due to factors such as social ties and financial resources. If such is the case, should IDPs be only those who, if had the ability, would cross territorial frontiers?
Giving elasticity to the concept’ scope allows it to meet the test of time and space; the IDP description becomes a resilient tool that persists over time. This proves correct when analysing national legal systems and practices; they typically reference the GP, adopt its IDP description, or state its two main elements and various circumstances leading to displacement. In this regard, Russel (2018) posits the “Guiding Principles have been most successful in forging international agreement on and conformity to the meaning of who is an ‘IDP’”.
Unlike the international regime for the protection of refugees, the IDP description is not a definition because the notion does not claim a legal status. Is it fair that, despite the human rights’ advent, the crossing of national boundaries determines how well we treat human beings? The GP believe IDPs have the right to enjoy equal freedoms and rights as other people within borders. Thus, if one crosses national boundaries, an elaborate – although increasingly fragmented – international protection regime emerges, but if one stays within, existence relies on luck, especially when considering governments are frequently a driver of human rights abuse.
Whilst the GP aim to address IDPs’ specific needs, deploying a crossing-border criterion for defining who is deserving of international assistance and who is not dehumanizes IDPs and presents several other problematics.
IDPs are bona fide citizens who hold legitimate claims to every right enshrined in international human rights and humanitarian law; the differentiation between refugees and IDPs, especially when these are frequently displaced for similar reasons, must perhaps be erased. The Refugee Convention was created in a highly political environment; however, World War II has ended, and the USSR dissolved. The international regime must not be based on European political realities but truly encompass those worldwide. Borders may not be as easy to distinguish – for countries not recognised by all states, where do boundaries lie? -, and people on both sides are frequently in identical situations, in need of protection and assistance.
Hathaway (1996) claims refugee law serves increasingly fewer people. Many do not have the option to cross international boundaries. Even if this was not the case, acquiring a more humane protection should not act as a motivator for international movement. Furthermore, what happens to those who have acquired refugee status in a country that becomes involved in conflict, uprooting its people? Is one a refugee or an IDP? If law – soft, hard, treaty or customary – is to be human, the only justification people should need to acquire safety is necessity and distress. Human solidarity should be enough to fight for all’s human rights despite of geographical location. In times where especially ethnic cleansing is not only a by-product of war but its main goal, humanity must transgress borders.
Deng (1998) claimed the GP “stipulate states, as a measure of their sovereignty, have the fundamental responsibility to provide life-supporting protection and assistance for their citizens. If they are unable to do so, they are expected to request and accept outside offers of aid”. This philosophical grounding creates a positive obligation that implies states cannot abdicate their primary duty towards their populations by hiding under the principle of non-interference. However, standards do not explicitly state international aid can be supplied without a sovereign state’s acceptance.
Principle 27 states international humanitarian agencies should consider the “protection needs and human rights” of IDPs and pursue operations in that regard. Not only is this important because it calls for attention for specific IDP needs, asking humanitarian agencies to develop adequate plans and vocalize the need to access populations presently at risk, but because it states IDPs have the right to access material assistance and protection from violence for their enjoyment of human rights. However, what happens when a state, through the veil of sovereignty, refuses international aid? Does international humanitarian action become limited to man-made borders that frequently humanize some whilst leaving others at the peripheries of existence?
Multiple states deny any form of international aid, refusing life-supporting aid to its citizens. Given the endless histories of foreign interventions for self-interest and imperial impositions, it could perhaps be reasonable to suspect foreign humanitarian action ultimately serves to mask actions of powerful countries. Should the international community intervene, and if so, are IDPs included in the Right to Protect (R2P)? Some argue sovereignty must be absolute for international order; intervention – in all its forms – would degrade rather than empower. However, one may potentially argue that such belief is grounded on a human hierarchy rather than on the universality of human rights.
When the Sri Lankan military cornered thousands of Tamils IDPs into a no-fire zone to later bombard and shell them in 2009, R2P was not evoked, showing the narrowness of the IDP concept and the failure of equating sovereignty to responsibility (Tran, 2009). Would applying R2P to IDPs stretch the notion beyond desirable, making it operationally unmanageable? If R2P is solely to be triggered when widespread systemic attacks occur, those in the context of natural disasters, where governments deliberately inflict violence upon certain groups, are left out (Hindawi, 2016).
By asking states to call for international assistance if uncapable of providing it itself and reconciling the tension between sovereignty and humanitarianism, the GP reconceptualize international solidarity. The Kampala Convention expands the meaning of international engagement by permitting the African Union to intervene in a state to aid in generating durable solutions for IDPs. Additionally, internal displacement is increasingly being incorporated into development and humanitarian agencies’ agendas, addressing the displacement continuum from prevention to durable solutions. This is important because some groups were reluctant to include climate disaster as a displacement reason. This way, the principles changed normative beliefs and discourses.
Nonetheless, international humanitarian law – upon which the GP are founded -, suffers from limited applicability, being mostly significant when armed conflict occurs (Fourth Geneva Convention, Article 3). When displacement occurs during a conflict of low intensity (Phuong, 2004), IDPs are sometimes unprotected, with states naming it a “mere riot” to avoid fulfilling what Geneva Conventions stipulate (Geissler, 1999). In fact, the Fourth Geneva Convention only safeguards “protected persons”, i.e. “those who find themselves in case of a conflict or occupation, in the hand of a Party to the conflict or Occupying Power of which they are not nationals” (Article 4). This leaves behind those caught in between internal conflict against own governments.
Neither a Convention nor a Treaty: An Obstacle to its Normative Influence?
The GP have a non-legally binding character, not having observed state negotiation but productive dialogue with experts instead. They therefore do not pertain to the conventional soft law model, perhaps lacking the emerging authority from legal proceedings. Nevertheless, they can be harder than they seem, making their way through international customary law.
Achieving a legally binding framework could take decades due to idea and position plurality. Additionally, governments do not always ratify treaties they adopt nor comply with those they have ratified. It could result in changes to existing human rights and humanitarian law provisions on which the UN Guiding Principles are intelligently grounded; drawing from treaty, soft and customary law to address legal gaps is certainly one of the GP’s main strengths, more easily promoting their adoption at several levels. The fact that they were developed by a team of experts including humanitarian, development and human rights organisations, encourages the international humanitarian community’s receptivity too.
The UN Commission on Human Rights portrayed the GP as a “standard” in 2003 and welcomed their “dissemination, promotion and application”, demonstrating strong endorsement worldwide (UNGA, 2003). At a regional level, the OAU formally acknowledged them and the Inter-American Commission on Human Rights became the first regional body to create a mandate for a Special Rapporteur on IDPs, using the framework to demand the Colombian government protect all put at risk by the country’s armed conflict. At national level, the Colombian government created an inter-ministerial body that uses the GP as a benchmark when working with IDPs. This way, these hard law-based principles form a normative initial stage that fills the international protection system towards IDPs at international, regional and national level.
It must not be forgotten, however, that the GPs simply state the minimum standards of protection and do not ensure the alignment between legal frameworks and practice. This discrepancy was observed in Colombia’s failure to adequately articulate necessary action. Despite Law 387, which seeks to provide measures to avoid involuntary/ coerced movement and assist the IDP population, Colombia’s Constitutional Court (2004) concluded that the treatment directed at them “was such a deviation from constitutionally established requirement” that the whole policy is an “unconstitutional state of affairs””. This shows the growing importance of GP in helping the judiciary recognise the rights of IDPs, hold the government accountable and guide the (re)articulation of policy and action, demonstrating the GP’s presence in international customary law.
Despite these important contributions, the reach of humanitarian assistance, codified in the GPs as a right held by IDPs, is also restricted by increasing securitization processes that attempt to shrink the global humanitarian space. Moreover, Weishaupt (2020) asks for the reconfiguration of the humanitarian-development-peace nexus, moving away from a silo structure that emphasizes separation, positing an existential threat to the advancement of durable solutions. Accordingly, McAdam (2018) calls for a novel approach embracing “more coherent, coordinated responses”. Pursuing the solutions codified in the GP thus relies on a broader humanitarian structure that must be welcomed by political elites and insurgent groups, not instrumentalized by them for state control, nor in attempts to control the enemy.
This essay has critically evaluated the standards outlined in the GP, its ability to (partially) transform the notion of sovereignty, international humanitarianism and soft law, be integrated at regional and national level, and form part of international customary law, giving judiciary and policy systems enhanced mechanisms to understand certain contexts and IDP specific needs. In this way, not only have the GP anchored an inclusive and universal IDP definition, shaping regional and national instruments such as the Kampala Convention, but they have proven to be a milestone in filling in a gap in the international protection regime.
However, several flaws remain. Firstly, the lack of innovative approaches to achieve durable solutions undermines the framework’s success, requiring proactive efforts, political willingness, and the ability to provide neutral and impartial humanitarian aid. Secondly, legal protection must be strengthened for those moving across and within borders. The Refugee Convention does not consider environmental disasters; its refugee definition must be granted the elasticity given to IDPs, suggesting both frameworks must be placed in dialogue with each other for significant advancement.
Nevertheless, granting refugees legal status whilst restricting IDPs to the rights offered to other citizens condemns the latter to mere existence. This might call for a new, radical legal framework: one covering all displacement forms despite geographical location. This is not to make the simple argument that everyone deserves equal enjoyment of their human rights, but to liberate the deeper historical layers of silencing and bitter, complicated regional struggles, and motivate the international community to re-examine its own notions of the human community, humanitarianism and international justice. For humanism should not leave the human outside.