While
searching solutions for important matters, it is significant to inquire the
legal extent of the issue. There is no legally binding international agreement
covering specifically the protection and the needs of IDPs. The only document
related to the rights of internally displaced is the Guiding Principles which
was released in 1998. Guiding Principles were prepared by Mr. Francis Deng, the
Special Representative of the Secretary-General on IDPs, following the civil
wars and conflicts of 1990s that brought about large quantities of IDPs. The
reasons why a non-binding document was chosen instead of a binding one can be
summarized as, first, the urgent need of a document about the IDPs and their
needs by international actors (especially the NGOs) and, second, the strong
concerns related to the states’ rejection to a legally binding agreement.
Guiding
Principles relied upon existing international humanitarian and human rights law
suggesting that the needs of the internally displaced are actually covered by international
agreements. I searched international law and tried to pull out the articles
related to IDPs. While doing this a book ‘Masses in Flight’ (1998), written by
the architecture of the Guiding Principles Francis Deng and a leading expert on
internal displacement Roberta Cohen, shed light on my works. In their book Deng
and Cohen indicate that “… existing international law does not contain
guarantees that explicitly mention internally displaced persons. It is often
difficult for governments, international organisations, NGOs, and the
internally displaced themselves to determine clearly which guarantees are applicable
in a specific situation” (Deng & Cohen, 1998 pg.74). Internally displaced
persons might not be explicitly mentioned in the international law, they,
however, share the general rights that are related to everybody else.
While mostly protecting them, international law has some
deficiencies concerning IDPs. Firstly, only states are accounted for the human
rights law. Secondly, some significant agreements have not been ratified by
some states which, in appearance, mean that they cannot be held accountable in
their actions embracing those agreements. Thirdly, humanitarian law is not
applicable during short armed conflicts and situations of tensions, and human
rights law is limited in such cases. Apart from these deficiencies, refugee law
does not cover internally displaced persons because when defined in the Article
I of Refugee Convention, refugee is specifically characterized as “being
outside the country of his former habitual residence”. While sharing the
identical situations, what separates refugees and IDPs by definition is the
action of crossing a border.
For this paper I reviewed following international
agreements:
Under
the International Human Rights Law
1- Convention
on the Prevention and Punishment of the Crime of Genocide (1948)
2- Convention
on the Elimination of All Forms of Discrimination against Women (1979)
3- Convention
On The Rights Of Persons With Disabilities (2006)
4- Convention
on the Rights of the Child (1989)
5- International
Convention for the Protection of All Persons from Enforced Disappearance (2010)
6- International
Convention on the Elimination of All Forms of Racial Discrimination (1969)
7- International
Covenant on Civil and Political Rights (1966)
8- Convention
and Protocol Relating the Status of Refugees (1951-1967)
9- Convention
Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment
(1987)
10- Universal
Declaration of Human Rights (1948)
Under
the International Humanitarian Law
1- Geneva
Convention Relative To The Protection Of Civilian Persons In Time Of War (1949)
2- Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol 1) (1979)
3- Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II) (1978)
PROTECTION
OF IDPS
Protection
of IDPs during internal (non-international) conflicts can be provided via common
Article 3 of the four Geneva Conventions.
This article, “in the case of armed conflict not of an international character”,
prohibits each party from all kinds of violence to life and person, taking of
hostages, outrages upon personal dignity, the passing of sentences and the
carrying out of executions without previous judgment. Moreover, Protocol II Article 13 states that “1.
The civilian population and individual civilians shall enjoy general protection
against the dangers arising from military operations. 2. The civilian
population as such, as well as individual civilians, shall not be the object of
attack. Acts or threats of violence the primary purpose of which is to spread
terror among the civilian population are prohibited.” This article also points out
that unless the civilians directly participate in hostilities, they should
enjoy the protection. Again, Protocol II
Article 14 prohibits “starvation of civilians as a method of combat” while Article 4 prohibits violence, collective
punishments, taking of hostages, acts of terrorism, outrages upon personal
dignity, slavery, pillage and threats to commit of the foregoing acts against
non-hostile civilians including IDPs. In addition, Article 17 forbids forced movements of civilians.
In
the part II of the Fourth Geneva
Convention which consists of “general protection of populations against certain
consequences of war”, Article 13
cover the whole population including IDPs and following articles gives the
fighting parties responsibilities of establishing hospital and safety zones (Article 14); establishing neutralized zones
(Article 15); providing particular
protection to the wounded and sick (Article
16).
Internal
conflicts are covered mostly by the common Article 3 and Protocol II, while
Protocol I would be the main source of consult for the protection of IDPs during
the international conflicts. Article 51
of Protocol I states that “1.The civilian population and individual
civilians shall enjoy general protection against dangers arising from military
operations… 2.The civilian population as such, as well as individual civilians,
shall not be the object of attack. Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are prohibited…
4.Indiscriminate attacks are prohibited… 6.Attacks against the civilian
population or civilians by way of reprisals are prohibited. 7. The presence or
movements of the civilian population or individual civilians shall not be used
to render certain points or areas immune from military operations, in
particular in attempts to shield military objectives.” Article 54 prohibits “starvation of civilians as a method of
warfare”, Article 59 and 60 prohibits
parties from attacking non-defended localities and demilitarized zones.
Protection of women with Article 76
and children with Article 77-78 also
ensured during interstate conflicts.
FREE
MOVEMENT AND THE RIGHT TO CHOOSE THEIR RESIDENCES
Free
movement and free to choose their residence can be the main requirements of the
internally displaced. Article 13.1 of
Universal Declaration of Human Rights and Article 12.1 of the Covenant on Civil and Political Rights are the
most suitable ones to this concern. They basically guarantee the right of
movement of people and the right to choose their residences. Article 17 of the CCPR also points that
“no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence…” While for the cases of international
conflicts, Article 49 of the Fourth
Geneva Convention prohibits “individual or mass forcible transfers, as well
as deportations of protected persons”, Article
17 of Protocol II specifies that “the displacement of the civilian
population shall not be ordered for reasons related to the conflict unless the
security of the civilians involved or imperative military reasons so demand”
for the cases of internal conflicts. Furthermore, the Universal Declaration of Human Rights also emphasized the
importance of the issue stating in the Article
9 that “no one shall be subjected to arbitrary arrest, detention or exile”.
FOOD
AND SHELTER
After
protection of their lives, the fundamental need of the IDPs is food and
shelter. As it was pointed out above, Article
54 of Protocol I prohibits “starvation of a civilian population as a method
of warfare. Article 55 of the Fourth Geneva Convention gives the responsibility
to the occupying power for “ensuring the food and medical supplies of the
population”. In addition, Article 27 of the Convention on the Rights of the
Child asks state parties to “recognize the right of every child to a standard
of living adequate for the child's physical, mental, spiritual, moral and
social development”.
OTHER
RELATED INTERNATIONAL LAW
In
addition to the abovementioned rights and responsibilities, following articles
also concerns internally displaced persons and the warring parties. In the case
of the family unity Article 16(3) of the
Universal Declaration of Human Rights and also Article 23(1) of the CCPR point identically that “the family is the
natural and fundamental group unit of society and is entitled to protection by
society and the State”. Being one of the foremost problems created by forced
displacement, education right of the internally displaced child is protected by
Articles 28 and 29 of the Convention on
the Rights of the Child. Different than this, as we have witnessed in
multiple occasions in Syria recently, humanitarian assistance to the internally
displaced gains even more importance during armed conflicts since one of the
warring parties, mostly states, may hamper humanitarian aids for the concerns
of blocking assistance to the other party. Deng and Cohen outlines this issue
by indicating that “ICRC is empowered by the statues of the International Red
Cross and Red Crescent Movement with a right of initiative to offer its
services to assist the victims of such situations, including displaced persons,
but a government is not obliged to accept ICRC’s offer of services and thus may
legitimately deny ICRC access to the county” (Deng & Cohen, 1998 pg.115).
They, however, also state that “if the Security Council so orders, there is a
clear obligation of states to permit humanitarian assistance and protection to
their civilian and internally displaced population if they, themselves, are
unable or unwilling to provide such aid” (Deng & Cohen, 1998 pg.120).
CONCLUSION
As
a conclusion to the legal rights of internally displaced persons, one can say
that the current international law secures their rights, however, indirectly. There
are still important gaps in the humanitarian and human rights law considering
the rights of IDPs. Existing law was mostly generated before the end of the cold
war and taking the example of the past conflicts that were in international nature.
Today’s conflicts are, however, taking place inside of the states among
different armed groups or among the regime and insurgent forces as we can
observe in countries with the highest amounts of internally displaced such as
Syria, Sudan, DRC, or Colombia. Absence of a specific law regarding the
internally displaced, furthermore, might, one way or another, encourage warring
parties to build up their strategies exploiting the situation of IDPs. Regional
binding instruments such as the Kampala Convention of Africa will hopefully set
examples and lead states to create an internationally binding agreement related
to internally displaced persons.
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