Protection of Internally Displaced Persons
Internally displaced persons (IDPs) are "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 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."1 A refugee, on the other hand, is defined by Article 1 of the 1951 Convention Relating to the Status of Refugees as someone who, “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”2 Remaining within the borders of their country of origin, IDPs face many similar challenges as refugees yet the latter benefit from the full authority of refugee law whereas the former do not.
The fundamental difference between protection of refugees and protection of IDPs is the responsibility of the government. Once refugees cross international borders, their country of origin is not obligated to protect them. IDPs, on the other hand, remain in their country of origin, the government of which holds the responsibility to protect them regardless of its ability to do so. Without the benefit of a specialized body of law, IDPs fall into a protection gap.
While IDPs are not protected under refugee law, they are protected as civilians under Human Rights Law (HRL), Humanitarian Law (IHL), and domestic law. Although IDPs remain within one country, there are aspects of Public International Law that apply alongside domestic law to govern the treatment of civilian populations within their national borders. In all armed conflicts, both international and non-international, IHL applies. Similarly, HRL governs the relationship of a government and its citizens at all times. The Guiding Principles on Internal Displacement of 1998 pull together aspects of these legal regimes to address situations specific to displacement. Yet, the Guiding Principles are not legally binding in the way that the Refugee Convention is; there are no enforcement mechanisms to ensure compliance with them. Several countries have incorporated protective aspects into their national legislation and more continue to do so. Even with these trends, protection is not absolute and, given the vulnerability of IDPs, further attempts have been made by various organizations to legally guarantee certain rights specific to their situation.
The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, also known as the Kampala Convention, was adopted by the African Union in 2009 as a means of addressing the needs of the millions of IDPs across the continent and preventing future displacement. As of May 2012 it had been signed by 35 member states of the African Union and ratified by 12 member states. To enter into force, the Convention must be ratified by 15 member states; because of this, it is currently not yet binding law on the 53 member states of the African Union.
The Kampala Convention is the first regional legal convention to secure protection for IDPs and is unique in its explicit provisions regarding the obligations of civil society organizations in addition to State actors. The Convention provides that States “shall provide sufficient protection and assistance to internally displaced persons, and where available resources are inadequate to enable them to do so, they shall cooperate in seeking the assistance of international organizations and humanitarian agencies, civil society organizations and other relevant actors”.3
There are over 25 million IDPs throughout the world facing issues ranging from housing to voting to healthcare. As the number of non-international armed conflicts continues, the problem of displacement becomes more prominent and durable solutions are needed. Internal displacement does not end once conflict subsides. The Inter-Agency Standing Committee established four conditions that IDPs must benefit from in order to reach a sustainable approach to the problem. These conditions are: “(i) long-term safety, security and freedom of movement; (ii) an adequate standard of living, including adequate food, water, housing, health care and basic education; (iii) access to employment and livelihoods; and (iv) access to effective mechanisms that restore their housing, land and property or provide them with compensation”.4 By understanding the solutions sought by international organizations and the legal protections currently applied to IDPs, humanitarian actors will be able to operate more effectively in environments with high levels of displacement among the population.
1Guiding Principles on Internal Displacement, Introduction, para. 2.
2Convention Relating to the Status of Refugees, Article 1, 1951.
3Kampala Convention, Article 5(6).
4UNHCR, State of the World’s Refugees: In Search of Solidarity: A Synthesis, 2012, 21.