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Citation: 21 Int'l J. Refugee L. 34 2009

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o The Author (2009). Published by Oxford University Press. All rights reserved.
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doi:10.1093/ijri/een038, Advance Access Published onJanuary 7, 2009

From Theory to Practice: National

and Regional Application
of the Guiding Principles
SUSAN CARR*

Abstract
The 1951 Refugee Convention affords protection for those who cross a border, but there is
no specific legally binding instrument for internally displaced persons (IDPs). As of December 2007, there were an estimated 26 million IDPs in the world. The 1998 Guiding Principles are, in and of themselves, soft law, and they emphasise that the primary responsibility
and duty to provide protection and humanitarian assistance to IDPs lies with the state in
whose jurisdiction they are found. The Guiding Principles are an excellent tool for the development of national policies and laws on internal displacement. Nevertheless, without
effective implementation and an independentjudiciary as well as dissemination and awareness, these national laws remain pieces of paper that only give the impression that measures
have been taken. If individuals are not provided with effective mechanisms to access their
rights, and if governments do not develop systems to review their effectiveness, then we
are little better off than before the national policies were developed. This article will
consider the cases of Colombia, Turkey and Angola to determine the scope of the laws,
their concurrence with international principles, as well as their practical effectiveness for
those displaced.

1. Introduction
War, internal disturbances, natural disasters and economic strife have all
been the cause of mass displacement of populations since the end of the
Second World War. The 1951 Refugee Convention affords protection for
those who cross a border, but there is no specific legally binding instrument for internally displaced persons (IDPs). The inadequacy of this
situation was recognised by former United Nations Secretary General
Boutros Boutros-Ghali: 'It is inadmissible that persons who are able to
cross a border benefit from the rules of international law while those who
have not been able to leave their country and may be just a few hundred
metres away should remain without protection'.' Furthermore, 'National
authorities have the primary duty and responsibility to provide protection
* BSC Econ, Aberystwyth University; LLM, University of Essex, specialising in Refugee and internal displacement law. Previously worked for the ICRC and Advocacy Forum Nepal, currently working

for Home for Human Rights, Sri Lanka.

I Former UN Secretary General Boutros Boutros-Ghali, 9Jan. 1996, as quoted in Roberta Cohen
and Francis M. Deng, Masses in Flht: The Global Crisis of Internal Displacement (Brookings Institution
Press, Washington DC, 1998), 126.

Nationaland RegionalApplication of the Guiding Principles

35

and humanitarian assistance to internally displaced persons within their

jurisdiction'. 2 This has meant that the protection of IDPs has remained
largely unaddressed by the international community, despite the fact that
they often live in desperate conditions and are the victims of ongoing

violations of their human rights.

As of December 2007, there were an estimated 26 million IDPs in the
world. The largest internal displacement situations are affecting Sudan,
Colombia, Iraq, the DRC and Uganda. Of these, 11.3 million remain
without significant humanitarian assistance from their government and 9.3
that are either hostile or indifferent to
million are faced with governments
3
their protection needs.
The appointment in 1992 of Francis Deng as the UN Representative on
Internal Displacement has brought the failings of their protection to the
attention of the international community. It has not, however, changed the
fact that primary responsibility for their protection remains in the hands of
the national authorities. However, the development of UN mechanisms
and the publication in 1998 of the Guiding Principles on Internal Displacement have led to heightened awareness. There has been a vast
increase in the number of national laws and policies setting out protection
regimes specific to internally displaced persons. Prior to the Guiding Principles, Azerbaijan, Colombia and Georgia had internal displacement laws.
Now, over thirteen countries have developed laws or policies relating to
IDPs.
The Guiding Principles remain soft law and, as such, are non-binding.
However, they explicitly set out in one document the international human
rights obligations that are binding through international treaties and how
these obligations are applicable to situations of internal displacement. This
means that the Guiding Principles are an excellent tool for the development of national policies and laws on internal displacement. In and of
themselves, they remain of very little legal value, but they remain the single
most important source of standards for states to implement at the domestic
level.
Despite these advances, without effective implementation and an independent judiciary, as well as dissemination and awareness, these national
laws remain pieces of paper that only give the impression that measures
have been taken. If individuals are not provided with effective mechanisms
to access their rights, and if governments do not develop systems to review
their effectiveness, then we are little better off than before the national
policies were developed. To allow these policies to be developed but badly
2 Guiding Principles on Internal Displacement, extract from UN document E/CN.4/1998/53/
Add.2, dated II Feb. 1998, Principle 3.
3 Internal Displacement Monitoring Centre (IDMC), InternalDisplacent Global Overview of Trends
and Developments in 2007 (Norwegian Refugee Council, Apr. 2008), 6.

36

Susan Carr

implemented permits governments to put up a smoke screen to shield them

from their responsibility to protect. This article will consider the cases of
Colombia, Turkey and Angola to determine the scope of the laws, their
concurrence with international principles, as well as their practical effectiveness for those displaced.

2. Developing national policies

There have been several methods used to develop national policies on
internal displacement. Countries such as Liberia have adopted the Guiding Principles as a whole. 4 However, the Guiding Principles, as their
name indicates, were developed as abstract principles, intended to guide
the development of national policies. 5 They were never intended to be
implemented as such. In order for the law to be effective, it is necessary
for it to set out how it will be applied to a country's specific judicial system, as well as to develop the framework for effective implementation and
dissemination. Although this method means that national policy on internal displacement is in total concurrence with international principles, it
does not allow for national variations in needs, nor does it provide the
population with any ownership of the law, as there is generally no, or
very little, consultation process involved. A law that allows the government to say that it is in line with international principles can remain, at
the same time, ineffective for the people it purports to protect if it is not
solidly grounded in their needs. The Guiding Principles set out norms;
however, they do not set out the implementation and dissemination aspects necessary for the rules to be applied. For a law to be effective, it is
necessary for it to cover aspects such as institutional responsibility for the
effective implementation and monitoring of each rule. If the law does
not establish who is responsible within the government to ensure the
provision of access to food and education, for example, it remains impossible for IDPs to claim their rights. Further, it makes it more difficult for
government institutions to take action on the back of the law if they have
not been provided with a clear mandate so to do.
A second method has been the development of a national policy that
covers a specific right or that deals with a particular cause of displacement.
This is the most widespread system. Used by countries such as Angola and
Turkey, these laws tend to have a very well developed implementation system that addresses the specific needs of individuals affected, as well as setting out implementation and dissemination methods. The Turkish 'Law on
4 Jessica Wyndham, A Developing Trend: Laws and Policieson InternalDisplacement (Human Rights Brief,
Winter 2006).
5 The Brookings Institution, Addressing Internal Displacement: A Ramework for National Responsibiliy
(University of Bern Project on Internal Displacement, Apr. 2005).

Nationaland Regional Application of the Guiding Principles

37

the Compensation of Damages that Occurred due to Terror and the Fight
Against Terror' addresses the specific problems of restitution and reparation set out in Principle 29 of the Guiding Principles 6 . This method allows
for a participatory method of development and implementation and can
provide for ownership of the policy by the affected population. However, it
does not cover other aspects of protection, such as protection against displacement. This leaves vast gaps in the protection regime. Furthermore,
Compensation Law 5233 limits compensation and restitution to those displaced as a result of terror or the war on terror.
ARTICLE 2: This law regulates the principles and procedures regarding the compensation - by way of friendly settlement - of material damages suffered by natural persons and legal entities of private law, as a result of the acts falling under
Articles 1, 3 and 4 of the Anti Terror Law no. 3713 or due to the activities conducted under the fight against terrorism.
This law does not apply to: [..]
c) The damages compensated in accordance with the final judgment of the ECHR
taken in line with Article 41 of the Convention for the Protection of Human Rights and
Fundamental Freedoms for violation of the articles of the convention or its additional protocols or the damages paid in accordance with the provisions of the
Convention by way of friendly settlement.
d) The damages which occurred due to reasons other than terrorism, such as economic and social reasons, and the damages which occurred due to displacement
of persons on their own will.
e) The damages occurred due to deliberate acts of the persons themselves.
1)The damages suffered by persons on account of their act of aiding and abetting
in terror incidents or due to crimes falling under Articles 1, 3 and 74 of the Anti
Terror Law provided that they have been convicted of such crimes.
This risks creating a two-tier system, where those who are displaced for
reasons not covered by this law will not be able to access compensation,
but they could be living side by side with those who can. It is necessary to
look into the risk of this creating resentment between differently displaced
populations.
Although the Turkish law on restitution for IDPs is well established,
there remain significant lacunae in the overall protection of IDPs, such as
the right to protection of family life set out in Principle 17 of the Guiding

6 See, above n. 2, Principle 29.

7 Article 2, Compensation Law, The Law on the Compensation of Damages that Occurred due to
Terror and the Fight Against Terror, Law No. 5233, as found in National and Regional Laws Policies on
Internal Displacement, compiled by the Brookings Bern Project on Internal Displacement 2006, 215.

38

Susan Carr

Principles, or protection against arbitrary displacement as set out in Principle 6. Implementation of these rights could be achieved by reviewing
existing national laws so that they cover aspects specific to internal displacement. To achieve a comprehensive set of laws protecting IDPs, it is
not necessary to develop a whole new set of laws. Integrating IDP-specific
issues into existing laws can be just as effective as developing a new policy,
if not more so, as the framework, implementation, dissemination and
accountability is already established.
A third method of promoting national policies has been the development of a comprehensive law covering all aspects of internal displacement.
The Colombian Law 387 is the law that has come the closest to achieving
this. Published in 1997 and amended in 2005 '[by] means of which provisions are issued regarding rationalization of administrative processes and
procedures of the State entities and organizations and those private organizations that exercise public functions or provide public services', 8 this law
covers aspects from the right to not be forcibly displaced, to the right to
request and receive international assistance. It also covers the right to education and the right to not be discriminated against due to displaced status. 9 Not only does this law provide comprehensive cover for most if not all
the principles set out in the Guiding Principles, it also provides extensive
provisions for the development of governmental entities responsible for its
implementation, 'The National Government shall promote the creation of
departmental, district, and municipal committees for Comprehensive
Assistance to Populations Displaced by Violence, responsible for providing
support to and cooperating with the National System for Comprehensive
Assistance to Populations Displaced by Violence, and these shall be made
up of: [...]'.10 Paragraph 3 goes further by stating that 'In those municipalities or districts where there are displacement situations due to violence,
it shall be the obligation of the mayors to call an emergency meeting of the
municipal and district committees for Comprehensive Assistance to Displaced Populations. Non-compliance with this provision shall be considered misconduct'. I I In the following articles it sets out institutional
responsibility and the measures to be taken at each stage of displacement.
This law has been extended through twelve subsidiary decrees, such as
Agreement No. 59 of 1997 of the National Council for Social Security &
Health Declaring Mass Displacement as a Result of Violence a Catastrophic Event, Decree 173 of 1998 adopting the National Plan for Comprehensive Assistance to Populations Displaced by Violence, Decree No.
8 Law 387 of 1997 (English), as found in National and Regional Laws Policies on Internal Displacement, compiled by the Brookings Bern Project on Internal Displacement 2006, 122.
9 Ibid., Article 2, 123.
'0 Ibid., Article 7, 125.
1 Ibid.

Nationaland RegionalApplication of the Guiding Principles

39

2007 of 2001 Regulating Articles 7, 17, and 19 of Law 387 of 1997 Relating to the Return or Resettlement of Displaced Rural Communities and
Decree No. 250 of 2005 Concerning the Adoption of a National Plan for
Comprehensive Attention to the Population Displaced by Violence. 12 Taking this even further, the Colombian Constitutional Court, following Articles 9313 and 210 of the Constitution, has considered some of these decrees
as part of the constitutional block, thereby providing them with an even
stronger status. This law therefore provides not only comprehensive cover,
but also the system of implementation that is lacking in the policies that
simply adopt the Guiding Principles as a whole. Interestingly, this was one
of the laws developed prior to the publication of the Guiding Principles.
These three methods all show similar failings, even at the paper level. All
but the first method exhibit discrepancies with the Guiding Principles. One
main failure is the definition of internally displaced. The definition set out
in the Guiding Principles as a non-exhaustive description reads '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 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'. 14 The Turkish law,
as seen above, limits the protection to those displaced as a result of terrorism. The Colombian law, developed in the context of an internal conflict,
limits its scope to displacement caused by internal conflict, thereby excluding the people displaced alongside those covered by the law. Angola remedied this discrepancy with the Council of Ministers Decree No. 70/02 in
2002.15 It extended the 'Norms on the Resettlement of Internally Displaced
Persons' to cover returning refugees. This reduced the number of laws, clarified the situation and reduced the risk of creating tensions between these
groups, who are often living side by side. However, it creates a tiered system
within the country, where those displaced for reasons of natural disaster,
although often in just as dire a situation as those displaced by conflict, are
not entitled to the same protection. This can lead to confusion as to entitlement as well as to problems of implementation, not to mention the continued violations of human rights for a whole section of the population afforded
no protection. Despite these discrepancies with the Guiding Principles, these

12 For a full list and details, see, <http://www.brookings.edu/projects/idp/Laws-and-Policies/

colombia.aspx>.
13 'The rights and duties set forth in this Constitution shall be interpreted in accordance with the
international human rights treaties ratified by Colombia', Article 93, Colombian Constitution.
<http://www.equalitynow.org/english/campaigns/un/unhrc-reports/unhri-colombia-en.pdf>.
14 Guiding Principles, 'Paragraph 2: Paragraph 2 is a descriptive identification of the category
of persons whose needs are the concern of the Guiding Principles. [...] It is important to stress that
paragraph 2 is not a legal definition of internally displaced persons', annotations by Walter Kalin.
15 Council of Ministers Decree No. 79/02 (English), 6 Dec. 2002.

40

Susan Carr

laws show national initiative for the protection of IDPs and recognition of
their specific protection needs. There may be some areas that need to be
improved, but at least there is now something to improve.

3. Enhancing rights
There are various methods of enhancing rights. However, for any of
these methods to be a success, there needs to be effective enforcement of
the law by the judiciary.
Once again Colombia provides the example. The Colombian Constitutional Court has made important rulings in its efforts to implement the
rights of the internally displaced. This has happened at two levels. The
'actione de tutela' is a complaint that any citizen may bring before any judge
to seek an immediate judicial injunction against the actions or omissions of
any public authority. By 2005, there had been 2,211,348 tutela actions.
This has allowed decisions to be taken to stop the immediate threats faced
by the internally displaced. Furthermore, injudgment T-025/04 the Constitutional Court formally declared that the inhumane living conditions of
the internally displaced needed to be addressed by all competent authorities, as 'due to action or omission by the authorities in providing displaced
populations with optimum and effective protection, thousands of people
suffer multiple and continued violations of their human rights'. 16 It further
ruled that these violations were due to deep-seated structural failures. After
initial hesitation, the Government has now explicitly committed to abide
by this ruling. Going further, the Court declared that the situation of IDPs
constituted an 'unconstitutional state of affairs' due to the systematic fail17
ures in the State that did not allow for the implementation of the law.
However, three years after the ruling, the Government had still to take
effective steps to abide by the ruling. The court, although it has the power
to do so, ruled out the option of taking sanctions for contempt of court and
is continuing to order gradual advances. 18 It is therefore apparent that, in
the case of Colombia, the action of the judiciary remains limited by the
inaction of the Government. Independent judgments, as the laws they try
to enforce, are only as good as their capacity to have them effectively
enforced, and this capacity remains sadly lacking in many places.
Turkey has taken a slightly different approach to resolving difficulties with
the effective enforcement of its policies. The enactment, in 2004, of a law to
determine compensation was rapidly followed by reports of inconsistencies.

16 Manuel Jos6 Cepeda-Espinosa, 'How far may Colombia's Constitutional Court go to protect
IDP rights?' ForcedMigrationReview (Brookings-Bern Special Issue). Available online at: <http://www.
fmreview.orgFMRpdfs/Brooking Special/ 3.pdf>.
17 See, above n. 15.

18 Ibid.

Nationaland RegionalApplication of the Guiding Principles

41

The Government therefore issued guidelines to standardise guidance and

training of the commissions. 19 This more hands on approach allows for
consultation with local authorities and IDPs and addresses the specific issues
that arise during the implementation of a new law. It does not, however,
solve all the difficulties that have arisen in Turkey in relation to the protection of the internally displaced, as will be seen later.
Angola is also faced with many problems that have a direct impact on
the protection of internally displaced persons. Municipal courts are functioning in only fourteen of the affected municipalities, 20 meaning that the
access to redress for internally displaced persons is very limited as the compliance with the norms and regulations set out by the Government is also
very limited. Furthermore, between 70 and 90 percent of Angolans lack
proof of identity, with more than 70 percent of children under the age of
five not being registered. 2 1 In order to access the courts, it is necessary to
present oneself with proof of identity. As a result, even in areas where the
system is working, access to it is next to impossible for the majority of internally displaced persons. In the absence of an explicit right to documentation, this poses a serious problem for many people.
The examples above show a wide disparity in the practical application
of the law. In other countries, with more recent laws, only time will tell
whether the courts have the independence and the will to take steps, such
as those seen in Colombia, to enforce respect by their governments of the
laws and policies that have been developed, or whether they will take the
Turkish approach of government-led initiatives to support effective implementation. It is also necessary for these laws and the judicial or governmental policies, to seep down to the level of the individual in order to have
a positive and effective impact on the enjoyment of human rights.

4. Evaluation of domestic measures

Colombia is seen as a prime example of a national law that is in accordance with the Guiding Principles. However, in practice the impact of
this has been restricted. In the past four years alone, over 5 percent
of Colombia's population has been deliberately forced into a condition of
displacement 2 2 as a result of acts by belligerents on both sides of the
internal disturbances. 23 This said, the Government has established a set
19 Internal Displacement Monitoring Centre (IDMC), 'Turkey: Progress on National IDP Policy
Paves Way for Further Reforms', 26 July 2007. Available Online, UNHCR Refworld, at: <http://
www.unhcr.org/refworld/docid/46a9a3e52.html>.
20 See, above n. 3, 52.
21 Ibid., 53.

22 'Colombia: Displaced and Discarded. The Plight of Internally Displaced Persons in BogotA and
Cartagena', Human Rights Watch, Oct. 2005, vol. 17, no. 4(b), 5.
23 There is debate as to the qualification of the situation in Colombia as internal disturbances or
internal conflict. However this debate is not relevant to the question at hand.

42

Susan Carr

of rules, in accordance with the Guiding Principles, that appear to be

initiatives aimed at protecting internally displaced persons. As outlined
in Guiding Principle 3,24 Law 38725 entitles displaced families to humanitarian assistance. In practice, very few of Colombia's IDPs have
benefited from this law and in many cases it has proved inadequate. In
order to receive the humanitarian aid provided for by Law 387, it is first
necessary to register with the authorities, a process that can legally take
up to fifteen working days, but which often takes much longer.26 During
this period, IDPs are entitled to and receive no help from the authorities. In addition, even after the registration period, it may take up to six
months before access to aid is made available. 2 7 Furthermore, the provision of this aid is limited to three months of displacement. 28 Thus, instead of providing for immediate relief, the length of the procedure and
the time limits imposed mean that Law 387 is incapable of providing
for the basic needs of many of the IDPs it is supposed to assist. The
procedures imposed do not take into account the reluctance of many
displaced persons to register with the authorities, resulting from fear of
discrimination and persecution. Additionally, the Colombian government has also made announcements that access to schools and to the
health system for displaced persons would be increased. However, according to the Guiding Principles, the Government has the duty to provide essential medical services and sanitation 29 alongside access to free
and compulsory education at the primary level. 30 Therefore, whilst
being one of the countries that has gone the furthest in accepting and
developing IDP-specific protection regimes, Colombia has not been able
to implement them efficiently and nor have all the provisions been applied with equal status. In 2005, the Colombian Constitutional Court
ruled that the measures that had been taken by the Government were
insufficient, both in terms of resources and institutional will. 3 1 Whilst a
lack of resources is understandable given the country's circumstances, a
call for international help could resolve this. As such, a lack of institutional will exists within the Colombian Government and this is in violation of Guiding Principle 3.32
Only four African countries have adopted a policy on internal displacement that is in line with the Guiding Principles; Angola is one of them.

Guiding Principles, Principle 3.

See, above n. 20.
26 Ibid., 35.
27 Ibid.
28 Ibid., 36.
29 See, above n. 2, Principle 18(b).
30 Ibid., no. 23.
31 See, above n. 20, 5.
32 See, above n. 2, no. 3
24
25

Nationaland RegionalApplication of the Guiding Principles

43

Like Colombia, Angola also suffers from a situation where high internal
displacement levels exist and it too has been seen as taking the initiative in
the application of the Guiding Principles. The problem of internal displacement in Angola is striking. Luena, a town of 150,000, has an estimated 60,000 IDPs, with people living in crowded camps and under
derelict railway carriages. 33 As in Colombia, however, whilst steps have
been taken, there is an absence of adequate implementation of the policies. 34 Angola's IDPs continue to suffer from harassment and extortion at
check points, including violence, rape, return outside of the norms, restriction of freedom of movement and exclusion from social services and
humanitarian assistance. 35 This is in direct violation of Principles 10, 11,
12, 14, 15, 18, 19 and 25 of the Guiding Principles 36 and, by implication,
also violates other provisions, such as the right to education or political
participation, as these are only obtainable after the minimum requirements
for survival are adequately provided for. One area of particular concern,
along with the lack of identification, is return. Although the Government
has issued 'Norms on Resettlement of Displaced Populations', 3 7 these are
inadequately implemented, if at all. In September 2004, the Government
announced that all 340,000 IDPs should return to their areas of origin and
that camps were no longer necessary. During the resettlement period, only
15 percent of the returnees moved within the framework of the governmental plan. In addition, only 30 per cent returned to an area where adequate living conditions had been established. 38 These practices violate
both the requirement of voluntary return and the right to humanitarian
39
help with return; it also violates the right to adequate living conditions.
Within Europe, a number of cases have been brought before the European Court of Human Rights against Turkey, and the European Convention has been interpreted as applicable to internal displacement. However,
the situation in the country remains troublesome. The Government claims
that conflict has displaced 353,000 people, whilst NGOs and international
observers place the figure between 1 and 4.5 million. 40 The Government's
non-recognition of the extent of the problem of displacement is worrisome as it impairs aid provision and hinders return.

33 Internal Displacement Global Oveiew of Trends and Developments in 2005 (IDMC, Norwegian Refugee
Council, 2006), 64.
34 See, above n. 3, 54.
35 Ibid., 52.
36

See, above n. 2, Principles 10, 11, 12, 14, 15, 18, 19 and 25.

37 See, above n. 20, 105-6.

38 See, above n. 5, 106-8.
39

See, above n. 2, Principles 14, 15, 18, 28 and 30.

40 'Trapped in Displacement, Internally Displaced People in the OSCE area', OSCE Supplemen-

tary Human Dimension Meeting on 'Internally Displaced Persons', Norwegian Refugee Council, Global IDP Project, Vienna, 4-5 Nov. 2004, 25.

Susan Carr
Although there have been measures taken to facilitate return, there have
been several elements that continue to impede return. Kongra-Gel, the
former PKK, announced the end of the formal ceasefire in June 2004
creating a renewal of insecurity. Return has also been impaired by the village guard system, established by the Government during the conflict.
These guards have persecuted and, in some instances, murdered returning
displaced persons in addition to occupying their land. Furthermore, and in
violation to the right to property, as well as of Principles 28, (provision of
aid during return), 29 (discrimination after return on basis of displacement) and 30 (rapid and unimpeded access for humanitarian organisations) of the Guiding Principles, 4 1 return has also been restricted to those
able to obtain official permission to do so. 42 There has been additional fear
that the compensation law issued inJuly 2004, allowing those displaced by
acts of terrorism to claim compensation from the Government, will not be
implemented in an impartial and independent way.43 Finally, there is continued discrimination in access to education and health care, especially for
45
44
displaced women and children, violating Principles 18, 19 and 23.
However, since the visit of the UN Secretary-General's Representative
on Internally Displaced Persons, the Turkish government has undertaken
a number of key initiatives. In August 2005, the Council of Ministers
issued 'Measures on the Issue of Internally Displaced Persons and the
Return to Village and Rehabilitation Project in Turkey'. Whilst these
Measures were only made easily accessible on 15 March 2006,46 thereby
reducing NGO's knowledge and evaluation, as well as restricting participation in their development, they do appear to bring solutions to some of the
problems faced by IDPs in Turkey
Under 'Implementation Principles', the Framework Document emphasises that
returns will be voluntary and will not be dependent on any permission from
authorities, but states that IDPs should notify the highest administrative authority
in the areas to which they are returning. Complaints about village guards hindering returning IDPs will be handled swiftly and obstacles to return arising from
landmines will also be addressed. The document also promises sufficient consultation, cooperation and information exchange with NGOs in the implementation,
monitoring and assessment process and offers possible support for NGO projects
on education, health, agriculture and employment. It also promises transparency

41 See, above n. 2, Principles 28, 29 and 30.

42 See, above n. 40.
43 Ibid.
44 Ibid.

45 See, above n. 2, Principles 18, 19 and 23.

46 'Overcoming a Legacy of Mistrust: Towards Reconciliation between the State and the Displaced,
update on the implementation of the recommendations made by the UN Secretary-General's Representative on internally displaced persons following his visit to Turkey', TESEV, NRC and IDMC, May
2006.

Nationaland Regional Application of the Guiding Principles

45

in policy implementation. The Ministry of Interior (Mol) is designated the chief

coordinator for the implementation, monitoring and evaluation of policies on
internal displacement. On another positive note, the document promises to ensure
authority
the identification of responsibilities and the limitation of discretionary
47
of government agencies, and to ensure uniformity in that regard.

Although this document appears encouraging, it is a framework for the

development of a strategy that has not yet been issued. Only time will tell
whether this new approach to internal displacement will deliver its promises.
Return is not the only issue facing internally displaced persons in Turkey
Many have been displaced for ten years and still face poverty, joblessness,
lack of access to education and insufficient access to health care. This is
especially the case of the urban displaced. Some of them have been able
to benefit from national programmes, such as cash transfers for families
with school children and farm support programmes, however these programmes are not specific to the problems of internally displaced persons
and were due to end in 2006 and 2007.48 In May 2007, Turkey adopted
Law No. 5566 'Amending the Law on Compensation of Damages that
Occurred due to Terror' and in March 2007 it adopted the 'Compensation
49
Matrix' and published the 'Methodology for Compensation Matrix'.
This seems to indicate that the Government has realised that the difficulties faced by the internally displaced will not end at the cut off dates set
and that they will continue to be in need of protection and support. It also
indicates that the Government has taken into account the problems and
failings of the previous laws and is attempting to resolve the issues that
have arisen. Despite these positive measures, '[s]everal factors continue to
pose obstacles to return in the areas where original displacement took
place, including real or perceived security threats to IDPs, landmines and
[unexploded ordnance], paucity of aid for returnees and lack of public
and social services in the return areas'. 50 It also remains to be seen how the
renewal of the conflict will affect the return of those already displaced,
whether it will create a new wave of displacement and how the Government will deal with the changing circumstances.

5. Conclusion
The Guiding Principles have brought with them both international
awareness and concern for the plight of the internally displaced. They
have also helped to create a wide and varied set of national policies and
laws on internal displacement. These laws and policies are more or less
47

Ibid., 15.

Ibid., 30.
49 Brookings-Bern Project on Internally Displaced Persons, National and Regional Laws and Policies on Internal Displacement, Nov. 2007.
50 See, above n. 46, 30.
48

46

Susan Carr

comprehensive in the rights that they cover, in the conditions of displacement that they recognise and in the provisions for application and dissemination that they provide. However, governments have so far failed to
bring effective implementation of these laws into practice. As has been
seen, despite measures taken by the judiciary and the governments in
both Colombia and Turkey, effective implementation remains lacking.
The judicial decisions in Colombia have failed to have any real impact
on the livelihood of those internally displaced and the laws have failed to
prevent renewed displacement. Such laws and policies look good on paper,
but they all fall at different hurdles. Some fail to cover all situations that
need specific protection, some fail to plan for implementation of the policies, and some fail due to ineffective judicial systems. It is therefore necessary to assist such countries to overcome these problems.
Having considered the effectiveness of these regimes it appears that
there is still a long way to go for effective improvement for those currently
displaced, and those who will be displaced in the future, to be achieved. It
is no longer a question of governments recognising their responsibility to
protect those affected by internal displacement, nor of them recognising
the specific needs of those internally displaced, this has been widely
achieved. New laws and policies have created a framework for the international community to work with in order to provide these governments with
the means necessary to achieve effective implementation and dissemination of the laws that they have developed. One step towards achieving this
was the publication of the manual 'Protecting Internally Displaced Persons, A Manual for Law and Policy Makers' in October 2008.51 Among
other things, it sets out a framework to build on, in conjunction with the
laws and policies, in order to ensure their implementation, such as effective
data collection, training on IDP rights, creation of a national focal point
and effective monitoring. It also sets out the necessity to effectively plan for
the necessary budgetary and human resources.5 2 The Manual also provides check lists of the issues that need to be covered for each stage of
displacement. More importantly, it reiterates that it may not be necessary
to develop new laws. One of the first steps should be to identify whether
existing legislation can be amended by decree, or whether existing laws
would effectively nullify such a decree. Once this has been determined it is
time to move forward to draw up amendments, decrees and, where necessary, new laws and, finally, constitutional amendments.
However, it is important to remember that each country will need to
adapt the guidance provided in the manual to the specific circumstances of
their judicial system, culture and needs of the displaced population. There
51 Protecting Internally DisplacedPersons:A Manualfor Law and Policy Makers (The Brookings Institution,
Oct. 2008).
52 Ibid.

Nationaland Regional Application of the Guiding Principles

47

can be no 'one size fits all' approach to achieve the improved protection of
IDPs. In the future, it will be necessary to assess whether these efforts have
produced positive results for IDP populations.
On the other hand, it is impossible to say that the past nine years have
not seen vast improvements in the protection against internal displacement. The creation of a national policy or law is a definite positive step
forward. Countries that are affected by large scale and long-term internal
displacement, such as Sudan, Iraq, Kenya, Bosnia and Herzegovina and
Cyprus, but have so far failed to develop any policy should be encouraged
to take steps to protect their populations and to recognise fundamental
rights. With additional support from both the international community
and civil society policies and laws can provide a good base on which an
effective protection system can be constructed.
As seen in the above examples, the development of laws and policies
alone is not sufficient to secure application and respect. One solution could
be a campaign of public awareness among the populations affected. By
informing the displaced of their rights it would be possible to create a civil
society movement to pressurise a government to take further steps towards
full implementation. A strong civil society can pressurise a government
from inside the country resulting in country specific solutions to the problems faced, whereas international pressure has the tendency to produce
general rules that are not context adapted, as seen in some cases of the
adoption of the Guiding Principles. Furthermore, such a campaign would
empower the displaced and provide them with a sense of ownership of the
laws that can currently seem alien to them.