The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Internally Displaced Persons

Conflicts and other situations of political or economic tension often cause population movements as people flee persecution or violence. The applicable law varies depending on whether the individuals in question crossed an international border. If they do, they become refugees and are covered by international refugee law. If not, they remain “internally displaced persons” (IDPs).

When IDPs are displaced due to an armed conflict, they enjoy the protection status of civilians granted under international humanitarian law. Where the existence of a conflict has not been acknowledged, IDPs may enjoy international assistance but may not be granted international protection as such.

In 2011, the Internal Displacement Monitoring Centre recorded more than 26.4 million internally displaced persons, a figure which is almost three times higher than the number of refugees for 2011, which is 10.4 million. The situation of IDPs is an immense challenge in terms of assistance, but also of protection, because they remain under the legal care of their own country, with no international status of protection (apart from that of civilians who are victims of an armed conflict, if there is recognition of such a situation).

Individuals who have been forced to leave their country to escape political persecution, war, or economic hardship are refugees or immigrants. They are then covered by international refugee and national immigration laws.

If individuals become displaced inside their country of origin, they are called “internally displaced persons” (IDPs). According to the Special Representative of the UN Secretary-General on Displaced Persons, as of early 2006, there were 50 million internally displaced persons in forty countries.

IDPs do not constitute a distinct legal category and therefore do not benefit from any specific protection under international law. In principle, IDPs are still under the protection of their national laws, but often the State itself may be the source of their displacement.

There is a legal framework, however, within which their protection should be undertaken:

  • in times of peace, they remain under the protection of their national laws and human rights conventions;
  • in times of conflict, they are protected by humanitarian law as civilians.

Fundamental guarantees

Most States tend to do everything they can to avoid large-scale flows of individuals across their borders, whether due to a conflict or other situations. The UN Security Council qualified the mass exodus of Kurdish people who tried to flee from Iraq to Turkey in 1991 and remained stuck in the Kurd Mountains as a threat to the peace and security of the region. The same occurred in the former Yugoslavia in 1993 and in Rwanda in 1994. Hence, individuals most often move within the borders of their own country in an attempt to flee the consequences of conflicts or tensions.

Insufficient International Responsibility for Internally Displaced Persons

While refugees come under the mandate of UNHCR, there is no international institution with a general mandate, or one with the overall means, to protect and provide concrete assistance to individuals displaced within their own State. Yet many of these people face the same needs of assistance and protection as refugees.

The mandate of UNHCR was expanded several times by the UN General Assembly, notably by its Resolution 53/125 (1998), to enable it to take charge of situations concerning IDPs. With the government’s agreement, UNHCR can set up material assistance programs for IDPs; however, there is no permanent universal legal instrument aimed at protecting individuals in such situations. UNHCR’s protective role therefore depends entirely on the negotiation and content of the ad hoc agreements that must be signed with the government concerned. This means that UNHCR’s actions, and any form of protection aimed at such populations, are largely dependent on the goodwill of States. In 2001, UNHCR refocused its operations and its mandate with regard to refugees. It now limits its actions to IDPs in situations where the following conditions are met: the Secretary-General of the United Nations has explicitly requested UNHCR to intervene through OCHA, where additional means are granted; the country concerned has agreed to the action, so that adequate security is provided.

In 1992, a special representative to the UN Secretary-General was created specifically to follow the issue of IDPs; Mr. Francis Deng was appointed. He compiled humanitarian law, human rights, and refugee law rules that are applicable to IDPs. In 1996, the special representative compiled and analyzed international norms that apply to situations of displacement. The study showed that because of gaps in the existing law, some IDPs’ needs with regard to protection and assistance remained uncovered. The General Assembly and the United Nations Commission for Human Rights asked the special representative to draft a set of Guiding Principles on Internal Displacement, aimed at clarifying and consolidating displaced persons’ rights.

The thirty guiding principles were adopted at the 1998 session of the UN Commission on Human Rights (today the UN Human Rights Council). They reflect international human rights and humanitarian law, restating existing norms and tailoring them to the needs of the displaced persons. While they are not legally binding, the Inter-Agency Standing Committee and the Office for the Coordination of Humanitarian Affairs has repeatedly recommended that these principles be applied during dialogue with governments and when providing assistance to IDPs.

The mandate of the special representative is limited, since he has no direct protection or assistance functions toward the IDPs. Nevertheless, NGOs can transmit information concerning human rights and humanitarian law violations committed against IDPs to him. In September 2004, the UN Secretary-General appointed Mr. Walter Kälin as Mr. Francis Deng’s successor. Dr. Chaloka Beyani from Zambia was subsequently appointed by the Human Rights Council in September 2010 as the new Special Rapporteur on the Human Rights of Internally Displaced Persons.

In his final report, released in January 2010, Mr. Walter Kälin asserted that the authority of the Guiding Principles has been consolidated at the international level. Indeed, the heads of State and government assembled in New York for the World Summit of September 2005 unanimously recognized the Guiding Principles as an “important international framework for the protection of internally displaced persons.” Most recently in March 2010, the General Assembly adopted Resolution 64/162, which recognized that “the protection of internally displaced persons has been strengthened by identifying, reaffirming and consolidating specific standards for their protection.” Mr. Walter Kälin contends that there are some indications that the Guiding Principles are emerging as customary law. Although they are not a binding international instrument, they tend to be translated into domestic legislation and regional conventions.

For the purpose of the Guiding Principles on Internal Displacement, internally displaced persons are defined as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflicts, situation of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border” (Art. 2 of the Guiding Principles).

DisastersHuman rightsInternational armed conflictNon-international armed conflict

In November 2006, the International Conference on the Great Lakes Region adopted the Great Lakes Protocol on Protection and Assistance to Internally Displaced Persons, which obliged the eleven Member States of the Conference to incorporate the UN Guiding Principles into their domestic law. These States are Angola, Burundi, Central African Republic, Congo, Democratic Republic of Congo, Kenya, Uganda, Rwanda, Sudan, Tanzania, and Zambia.

On 23 October 2009, the African Union signed the Convention for the Protection and Assistance of Internally Displaced Persons in Africa, also known as the Kampala Convention. As of July 2012, thirty-five States have signed the Convention, but only thirteen have ratified it: Benin, Central African Republic, Chad, Gabon, Gambia, Guinea Bissau, Lesotho, Niger, Nigeria, Sierra Leone, Togo, Uganda, and Zambia. Even though it has not yet entered into force (it needs the ratification of fifteen States to do so), this new Convention endorses the definition of IDPs contained in the UN Guiding Principles on Internal Displacement (Art. 1.k) and spells out commitments for the protection and assistance of IDPs by States Parties directly deriving from the content of the guiding principles. The Kampala Convention contains provisions on obligations relating to States Parties (Art. 3), which are to ensure respect for the principles of humanity and the human dignity of IDPs; to respect and ensure the protection of the human rights of IDPs, including non-discrimination and equal protection of law; to respect international humanitarian law; and to ensure assistance to IDPs as well as promote self-reliance (Art. 3). The Convention also foresees an obligation of mutual assistance between States. Indeed, where available resources are inadequate to enable States to provide sufficient protection and assistance to IDPs, they shall cooperate and seek the assistance of international and humanitarian organizations. It also provides grounds for intervention (Art. 8) in the case of war crimes, genocide, and crimes against humanity, in line with the relevant provisions of the African Union Charter. Finally, the Convention contains provisions on relocation (Art. 11).

In 2002, an Internal Displacement Unit was created within OCHA. In July 2004, it became the Inter-Agency Internal Displacement Division (IDD). It consists of a dozen international staff on secondment from the UN, and it is directed by Mr. Dennis McNamara. The Division is housed within OCHA in Geneva and also has a delegation in New York. It does not directly run field operations. The mandate of the Division is to make the UN collaborative response approach work by rallying the United Nations’ agencies in order to provide efficient assistance and protection to displaced people. It relies on a network of resident coordinators and field-based United Nations coordinators to address humanitarian issues and works in close cooperation with the United Nations High Representative for Displaced People. Concretely, the Division publishes reports on missions it undertakes on the ground and makes recommendations to countries. The IDD regularly provides specific support to UNHCR and UNDP, which are the cluster leads in four sectors of particular concern, namely Protection, Emergency Shelter, Camp Coordination/Management, and Early Recovery. The IDD’s objective since 2006 has been to support the strengthening of the inter-agency arrangements and capacities of United Nations agencies along the UN cluster reform.

In 1998, the Internal Displacement Monitoring Centre (IDMC) was established as the leading international body monitoring conflict-induced internal displacement worldwide by the Norwegian Refugee Council. While the Centre does not directly provide assistance to IDPs, its mandate is to contribute to improving national and international capacities to protect and assist the millions of IDPs worldwide. At the request of the United Nations, the IDMC runs an online database that provides comprehensive information and analysis on internal displacement in some fifty countries. Based on its monitoring and data collection activities, the Centre advocates for durable solutions to the plight of the internally displaced in line with international standards. It does not provide direct assistance to IDPs, but it carries out training activities to enhance the capacity of local actors to respond to the needs of IDPs.

Office for the Coordination of Humanitarian Affairs

Currently, IDPs receive assistance as the result of simultaneous actions by several agencies, which are able to divide up the responsibilities in organizing relief actions. However, this has led to a dilution of the responsibilities taken in terms of protecting this population.

Worse yet, the multiplication of agencies present on the ground in situations involving many IDPs tends to lend a sense of normalcy to the situation, from a diplomatic point of view, which hinders the official recognition of an actual state of war. Such recognition would strengthen the official application of humanitarian law and hence formally open the right to assistance and protection to which IDPs—as civilians in a conflict—are de facto entitled.

The apparent normalization of a situation can be dangerous since the protection of IDPs depends on the definition of their rights and of the different humanitarian actors’ responsibilities with regard to the specific protection needs faced by these populations. In practice, the recognition of a state of conflict is what enables humanitarian law to be the basis for their protection. The agencies and relief organizations working with the displaced persons can contribute to the recognition of such a situation.

The massacre that took place in a camp of IDPs in Kibeho, Rwanda, in April 1995 is an example of the potential danger that can result from the inadequate determination of responsibilities. When the Rwandan army attacked the camp, the mandate for protection over this group was scattered among too many actors: the UN military forces (UN-AMIR—the UN Assistance Mission for Rwanda) oversaw the physical protection of the camps (which did not necessarily include the individuals inside them); UNHCR’s authority was only recognized for refugees returning to Rwanda, not for displaced persons who had never left the territory; the UN human rights observers only had a mission to observe, not protect. Above all, it was declared that the country was not in a situation of conflict, the ICRC was absent, and the government did not consider itself under any obligation vis-à-vis this population accused of complicity in the genocide.

In certain cases, IDPs are gathered into specific zones or areas, whether spontaneously or as the result of international or national pressure, where they are meant to be protected. Depending on the status given to these zones, they may either come under the protection of humanitarian law or, conversely, find themselves more exposed to the dangers of war.

CampsProtected areas and zones

In Times of Peace or Unrest

In times of peace, of internal disturbances or tensions, or if the authorities concerned have not formally recognized a conflict situation, individuals remain under the sole protection of their domestic laws and authorities in conformity with human rights conventions.

  • The right to flee individual or collective persecution or danger remains a fundamental human right that must be respected at all times. Closing the border and refoulement of asylum seekers is a violation of fundamental human rights guarantees. Developing a program of assistance for IDPs cannot be considered as a legitimate substitute to the fundamental right to flee.
  • Except for the fundamental guarantees (or inalienable rights and freedoms), States can suspend the application of a majority of human rights in times of internal disturbances. ▸ Fundamental guarantees
  • Human rights conventions do not set forth concrete relief measures to assist such persons, nor do they posit any rights for humanitarian organizations or personnel.
  • Assistance and protection issues related to large-scale use of force or to governmental limitations of rights for safety reasons are poorly covered by human rights regulations.
  • There are very few control mechanisms in the field of human rights, and those that exist are set up to determine the existence of violations more than to prevent them. Nevertheless, at all times, including situations of unrest that do not qualify as actual armed conflicts, IDPs are protected by the fundamental guarantees set forth by humanitarian law and the inalienable rights established in human rights conventions. These rights have been complied, harmonized, and complemented in the set of Guiding Principles on Internal Displacement.

Fundamental guaranteesHuman rightsRefugeesRefoulement (forced return) and expulsion

In Times of Conflict

If IDPs are victims of a situation of armed conflict, they can benefit from the protection of humanitarian law by virtue of their civilian status. ▸ CiviliansProtected personsProtection

The laws of international and internal armed conflict take into consideration the fact that armed combat may cause significant population movements. However, the displacement of certain minority communities may be a deliberate policy or military objective, in and of itself, which is why humanitarian law decrees specific rules to protect the fate of IDPs:

  • it prohibits forced population displacement;
  • it prohibits methods of warfare the primary purpose of which is to spread terror among the civilian population;
  • it regulates the conduct of hostilities to prevent military harassment of the civilian population in general, or of certain groups in particular, from causing an exodus or wanderings;
  • it authorizes and regulates the provision of relief supplies for civilians so that they will not need to flee because of a shortage of goods essential to their survival;
  • finally, it establishes that, at any time and in any place, internally displaced persons must enjoy the fundamental guarantees of humanitarian law. IDPs can thus benefit from significant rights to international assistance and protection as victims of the conflict or as persons deprived of liberty if they have no freedom to leave the camp.

These rules, drawn from the Geneva Conventions and their Additional Protocols, are expressly meant to be applied by the ICRC; however, they should be defended by all agencies and organizations present in such situations. The government in question cannot refuse the presence of the ICRC, nor should it prevent other NGOs to intervene.

AssistanceCampsDetentionFundamental guaranteesHigh Commissioner for RefugeesHuman rightsInternational humanitarian lawInternmentNon-international armed conflictOffice for the Coordination of Humanitarian AffairsPopulation displacementProtected areas and zonesProtected personsProtectionRefugeesReliefSpecial Rapporteurs

@ http://ochaonline.un.org

http://www.internal-displacement.org

For Additional Information: Birkeland, Nina M. “Internal Displacement: Global Trends in Conflict-Induced Displacement.” International Review of the Red Cross 875 (September 2009): 491–508.

Deng, Francis M. Internally Displaced Persons: Report of the Representative of the Secretary-General Compilation and Analysis of Legal Norms . Geneva: UNHCR, 1995.

Haroff-Tavel, Marion. “Action Taken by the ICRC in Situations of Violence.” International Review of the Red Cross 294 (May–June 1993): 195–220.

Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, esp. part 5, chap. 38.

Herczegh, Geza. “State of Emergency and Humanitarian Law—On Article 75 of Additional Protocol I.” International Review of the Red Cross 242 (September–October 1984): 263–73.

Kälin, Walter. “Protection under International Humanitarian Law.” In Internally Displaced Persons Symposium, 23–25 October 1995 , edited by Jean-Philippe Lavoyer, 26–36. Geneva: ICRC, 1996.

Lavoyer, Jean-Philippe. “Protection under International Humanitarian Law.” In Internally Displaced Persons Symposium, 23–25 October 1995 , edited by Jean-Philippe Lavoyer, 15–25. Geneva: ICRC, 1996.

———. “Refugees and Internally Displaced Persons: International Humanitarian Law and the Role of the ICRC.” International Review of the Red Cross 305 (March–April 1995): 162–80.

OCHA. Guiding Principles on Internal Displacement . 2004. Available at http://www.internal-displacement .org .

UNHCR. The State of the World’s Refugees: Fifty Years of Humanitarian Action . New York: Oxford University Press, 2000. Available at http://www.unhcr.ch/pubs/sowr2000//sowr2000toc.htm .

The definition and recognition of an international armed conflict are crucial because they enable the implementation and enforcement of the rules of humanitarian law for such conflicts.

  • An international armed conflict opposes two or more States.
  • An internal armed conflict may be internationalized when another State supports and controls the activities of a non-state armed group acting against its own government, or when a multinational peacekeeping force becomes involved as party in the armed conflict. The applicable humanitarian law, however, depends on the state or non-state nature of the opposing parties to the conflict.
  • An armed conflict that opposes, on an occupied territory, the occupying power and a non-state armed group is an international armed conflict, even if the group has the characteristics of a terrorist group.
  • Rules applicable to international armed conflicts can be used to interpret the ones applicable to non-international armed conflicts.
  • Customary international humanitarian law harmonizes most of the rules applicable to international and non-international armed conflicts.

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