Legal Protection of Internally Displaced Persons

Andrew Solomon Director and Justice Sector Reform Advisor BlueLaw International LLP

Roadmap
IDP Facts & Figures and Protection Paradigm Who is an IDP? Causes and Consequences Normative Frameworks

National Sovereignty and Responsibility

Role of the International Community (United Nations) Challenges

Key IDP Facts and Figures

Conflict-induced IDPs in 2011: 26.4 Million

In more than 50 countries/all regions: Africa (9.7 M), Americas (5.6 M); Middle East (4.6 M), Asia (4.3 M), Europe/Eurasia (2.5 M) Largest IDP Populations: Colombia (3.9 5.3 M), Iraq (2.3 2.6 M), Sudan (2.2 M), DRC (1.7 M), Somalia (1.5 M)
Significant new displacements: Syria (2 M) Protracted displacement: Caucasus and Balkans Major IDP Returns (+200,000): Cote DIvoire, DRC, South Sudan, Libya

Disaster-Induced IDPs
Disaster-induced IDPs in 2011: 14.9 M Types of Disasters (Slow Onset and Sudden Onset): Storms, Floods, Fires, Earthquakes, Volcanic Eruptions, Droughts

Affecting 61 countries worldwide/all regions

89% of disaster-induced displacement in Asia: 13.3M IDPs China (4.4 M), Philippines (2.4 M), Thailand (1.6M), India (1.5M), Japan* (892 K) Americas (1.0 M), Africa (584 K), Europe (18 K), Oceania (12 K)

Take Note
IDP Demographics: Women and children often make up the largest percentage of IDP populations. Camps and Communities: The majority of IDP populations around the world do not live in camps. More IDPs than Refugees: Of the 42 million persons forcibly displaced around the globe, 16 M are refugees and asylum seekers.

IDP Protection Paradigm

Conflict Resolution and Peace-building
(diplomacy/ political engagement and mediation)

Humanitarian Assistance
(operational response)

IDPs

Development
(programming)

Human Rights (legal and non-legal advocacy)

Legal Protection
IASC IDP Policy: all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law, and refugee law.

Activities: Responsive, Remedial, Environmental

Legal Tools: International Conventions, Resolutions and Statements, Jurisprudence, National Laws and Policies, Peace Agreements Legal Actors: Legal Professionals, Bar Associations, Legal Aid, Paralegals, Human Rights NGOs and Defenders, Courts, Informal and Traditional Dispute Resolution

Who is an IDP?
Persons or groups of persons who have been forced or obliged to flee or 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 internationallyrecognized State border.
United Nations Guiding Principles on Internal Displacement, para. 2

Main Elements of IDP Definition

Citizens and habitual residents
Involuntary/coerced movement Triggering events Remain within State boundary

IDPs are Not Refugees

IDPs remain in the country of their citizenship or habitual residence IDPs do not enjoy any status under international law. IDP definition sets forth a condition not a legal status No international organization has a formal mandate to protect and to assist IDPs

Internal displacement gives rise to complex needs and vulnerabilities that refugees and those who remain in their homes do not necessarily exhibit

Consequences: Needs
Shelter and housing Clothing Clean water and sanitation Food Health and medical treatment (physical and psychological) Documentation

Consequences: Vulnerabilities
Physical Insecurity/Bodily harm
Sexual Exploitation and Abuse

and Gender-based Violence

Family separation Discrimination Lack of education and employment Dispossession of land, property, housing Exclusion from public & political life and access to justice

The UN Guiding Principles

Function as 1) the minimum international standard and 2) as a practical tool for the protection of the rights of IDPs Articulation of existing fundamental rights and duties found in international law including customary law Recognized by the 2005 World Summit Outcome Document as an important international framework for protection of internally displaced persons Endorsed at regional and national levels and translated into more than 40 languages Emerging norm of customary international law

The UN Guiding Principles

Draws upon existing human rights law, international humanitarian law, and refugee law

Affirms rights to physical security and integrity, basic necessities of life; civil and political rights, and economic, social and cultural rights
Guarantees protection during all phases of displacement, i.e. FROM, DURING, and FOLLOWING displacement

UN GPs Fundamentals
Non-discrimination, equality, and equal treatment (Principle 1) Primary duty for protection and assistance (Principle 3 and 25)

Arbitrary displacement is prohibited (Principle 6)

Access to basic life saving services (Principle 18) Recognition as a person before the law and the right to receive documentation (Principle 20)

Durable solutions to displacement (Principle 28)

Other IDP Instruments

Protocols to the Peace, Stability, and Development Pact of the International Conference of the Great Lakes Region (ICGLR) African Union Convention on the Protection and Assistance of Internally Displaced Persons (Kampala Convention) Regional Judgements: Endorois (Reparations), Mapiripian Massacre (Non-State Actors), Soltanov v. Azerbaijan (Property Rights); Isayeva v. Russia (Protection) National laws, policies, and judgements that address internal displacement

National Responsibility
Prevention Raising awareness Data collection Training Legal framework National policies Institutional focal point NHRI IDP participation Budgetary resources International cooperation

International Community
No single UN agency with an IDP mandate
2005 Humanitarian Reform: Cluster Approach

UN Special Procedure on IDPs

Strengthen the normative framework Enhance the will to protect Develop the capacity to protect Respond to new challenges Current Mandate Holder: Chaloka Beyani (Zambia) Previous Mandate Holders: Francis Deng and Walter Kalin

Review
IDPs have specific needs and vulnerabilities with corresponding fundamental rights and freedoms UN Guiding Principles serve as the foundation for the normative framework to protect IDPs at the international, regional, and national levels Primary duty and responsibility for IDP protection and assistance is at the national level but the international community plays an important subsidiary role Need to address root causes and all displacement triggers, including climate change, and increase accountability for mass atrocities and rights violations

Final Thoughts: Challenges

Increasing displacement on account of natural disasters, climate change, and development projects Addressing needs of host communities Shrinking humanitarian space Local integration as a realistic and feasible durable solution Ensuring accountability for internal displacement

Contact Information

Andrew Solomon
Director Judicial Sector Reform Advisor BlueLaw International LLP asolomon@bluelawinternational.com www.bluelawinternational.com
Working in the Nexus of Development, Democracy, and Defense