With Internal Displacement on the Rise, International Law Leaves Protection Gap

Publication Date: 
Thursday, May 14, 2015
Families carrying home their share of food, Oromi IDP camp, Kitgum District, northern Uganda, 18 May 2007. © Manoocher Deghati/IRIN

More people are fleeing conflict and violence than ever before on record, with the number of refugees, asylum seekers and internally displaced persons (IDPs) now exceeding 50 million people. Amongst these, IDPs — who are displaced within their country of origin — account for the largest portion, reaching a record 38 million people in 2014, according to a new report by the Internal Displacement Monitoring Centre (IDMC). Yet unlike refugees, who by definition have fled across an international border, IDPs do not benefit from the special status or specific rights and protections afforded to “refugees” under international law. As a result, their protection remains primarily under the purview of their national governments, many of which are either unable or unwilling to provide adequate protection and assistance; furthermore, some of these governments even have a hand in their displacement in the first place. The consequence is glaring gaps in humanitarian protection and assistance for IDPs, as opposed to refugees, despite the fact that non-international armed conflicts constitute the overwhelmingly predominant form of warfare today, and IDPs now outnumber refugees two to one.

Drivers of displacement

As the IDMC reports in its newly released annual overview of global trends, the majority of the world’s IDPs live in just 10 countries: Syria (7.6 million), Colombia (6 million), Iraq (3.4 million), Sudan (3.1 million), DR Congo (2.8 million), Pakistan (1.9 million), South Sudan (1.5 million), Somalia (1.1 million), Nigeria (1 million), and Turkey (1 million). Just five countries accounted for 60% of the 11 million newly displaced persons during 2013: Iraq (19.8%), South Sudan (11.9%), Syria (10%), DR Congo (9%) and Nigeria (8.9%).

The persistent increase in internal displacement in recent years reflects a number of protracted conflicts, as well as the high toll of contemporary conflicts on civilian populations. Asymmetrical and urban warfare, the rise of non-state armed groups, and parties’ failure to respect international humanitarian law (IHL) – e.g. through the targeting of civilians or commission of mass atrocities – have all contributed to high civilian casualties and displacement, exacerbated by an increase in global inequality and extreme wealth disparities which leave impoverished populations marginalized from social services and representation, and highly vulnerable to disruptions caused by conflict, organized crime or natural disasters.

Protection and Assistance to IDPs

Whereas refugees — persons who have fled across an international border and are unable or unwilling to return to their country of origin due to a well-founded fear of persecution — benefit from international protection under the 1951 Refugee Convention and its 1967 Protocol, as well as the mandate of the United Nations High Commissioner for Refugees (UNHCR), there is no corollary body of international law or agency mandated to protect and assist IDPs. Nonetheless, as compiled and restated in the Guiding Principles on Internal Displacement (1998), IDPs retain the rights and protections guaranteed under existing human rights law, humanitarian law, and domestic law. In situations of armed conflict, for instance, IHL protects civilians from and during displacement, and guarantees the right to basic humanitarian assistance. Unless done out of military necessity or for the purpose of civilian protection, displacement is prohibited under IHL. Furthermore, if committed as part of a widespread or systematic policy, forced displacement constitutes a crime against humanity.

Notably, while no convention on IDPs exists at the international level, the African Union (AU) became the first regional body to pass a legally binding instrument requiring governments to protect and assist IDPs. The Kampala Convention, which came into force in 2012, reflects the norms articulated in the 1998 Guiding Principles, and expands upon the obligations of AU states and other actors to prevent and address displacement. This is significant, given that 11.4 million of the world’s 38 million IDPs are in Africa, including 4.9 million newly displaced persons in 2014. As of this year, 22 countries have ratified the Convention (including Nigeria, the only one of the top 10 IDP countries to ratify), meaning that they are legally bound, while 20 others have signed it (including DR Congo, South Sudan and Somalia), meaning that they agree to act in good faith and to “not defeat the object and purpose” of the treaty, but are not bound by its specific provision; Sudan, with the largest number of IDPs in Africa (3.1 million), has not signed.

Outside of the Kampala Convention, however, the term “internally displaced person” is not a legal status, unlike the term “refugee”. IDPs are protected under IHL as members of the civilian population, but their national government is primarily responsible for their protection and assistance; international protection is complementary, meaning that international assistance is secondary for those who do not qualify as “refugees”. International law, after all, is fundamentally based on the principle that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition (known as the “Lotus Principle”). Thus, states have traditionally been reluctant to express consent to be bound by international law in their domestic affairs, within which IDPs would fall.

A look at the countries most affected by internal displacement, however, illustrates the problem with reliance on domestic protection for IDPs. In most countries atop the global displacement list — from Syria and Iraq to Sudan, DR Congo, and Colombia — the government has either contributed to, or been unwilling to respond to, mass displacement resulting from protracted armed conflict. In many cases, these countries are unable to provide much protection at all, or are on the verge on state fragmentation or failure. Furthermore, the prevalence of displacement resulting from internal armed conflicts today is poorly addressed by most of IHL, which was largely developed in the post-World War II era with inter-state conflicts in mind. As a result, the legal distinction between “refugees” and IDPs – resting primarily on the crossing of an international border – is an increasingly arbitrary basis for determining protection and assistance needs. For instance, internally displaced Syrians are amongst the most vulnerable — displaced by the conflict from their homes and livelihoods, and still threatened by conflict and insecurity in their own country – and yet largely beyond the reach of international protection or assistance afforded to those manage to who cross the border into neighboring Jordan, Turkey or Lebanon. For many around the globe, IDP status is a protracted state of existence: the average length of time people worldwide spend living is displacement – including both refugees and IDPs – is now about 17 years.

Filling the Gaps

The years since the development of the Guiding Principles have seen an increase in attention, research, and policy development aimed at protecting and assisting IDPs at the national and international level. Increased and more refined data collection present a fuller picture of the scale of displacement, as well as protection needs, while increased political attention to the problem of internal displacement has led to the development of new policies and operational responses to IDPs.

In the absence of a clear institutional mandate for addressing IDPs, the Inter-Agency Standing Committee (IASC) has developed a number of policies, tools and guidance documents on IDPs and designated responsibility for coordinating IDP protection to the Resident/Humanitarian Coordinator (RC/HC) in each country. Although UNHCR’s mandate to assist refugees has not been extended to cover IDPs, UNHCR engages with IDPs in many countries through the inter-agency cluster system, as the lead agency on conflict-induced internal displacement, lead of the global protection cluster, and co-lead the clusters for camp coordination and camp management (along with IOM) and shelter (along with IFRC). The UN has also appointed a UN Special Representative, and subsequently, Special Rapporteur on the Human Rights of Internally Displaced Persons.

There remains, however, a diffusion of responsibility and leadership on addressing the persistent IDP protection gaps within the humanitarian system. Rather than “mainstreaming” IDPs into more general vulnerable populations — a trend that Elizabeth Ferris, co-director of the Brookings-LSE Project on Internal Displacement, warns risks overlooking their displacement-specific needs — there is a need to consolidate international law, policy, and operational responsibility relating to IDPs. While states will continue to carefully guard their domestic affairs from international intervention, national sovereignty is no longer a sufficient justification for excluding IDPs from comprehensive international protection and assistance. In many contemporary conflicts, whether or not a displaced person crossed an internationally recognized state border is simply no longer an adequate determinant of their humanitarian protection and assistance needs.  Whereas states will remain primarily responsible for the protection of their populations, the international community has a responsibility to assist states in fulfilling this responsibility towards internally displaced persons, e.g. through awareness raising, diffusion of human rights and humanitarian norms, institutional capacity-building at the national and local levels, and the development of sustainable solutions to protracted displacement, including through return, reintegration, resettlement or restitution.

Comments

SIMON MUREU's picture

At times we may end up having people who pretend to be IDPS IN ORDER TO BENEFIT from the programs of others We have witnessed THIS IN kENYA AFTER  THE YEAR 2007-2008 CONFLICT This people have become a problem all a long
 

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