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International Legal Protections for the Internally Displaced

Worldwide, the number of people displaced within their own countries exceeds the number of those who have crossed international borders and become refugees.³  Recent estimates set the internally displaced population at twenty million and the refugee population at fifteen million.⁴  Often the internally displaced are fleeing the same persecution as refugees, the only difference being that refugees have crossed an international border.  However, the result of this difference is a comparatively weaker response from the international community.  Primary responsibility for the internally displaced rests with their governments, in compliance with international human rights and humanitarian obligations.  Where governments are failing to provide adequate assistance and protection to internally displaced populations, the international community has a responsibility to hold such states accountable to their obligations under international human rights and humanitarian law.  Yet despite growing internally displaced populations, the international community’s response to this needy and vulnerable group remains varied and inadequate.

Symptomatic of the lack of international oversight is the fact that no internationally agreed-upon definition of the internally displaced exists at present.  In 1992, a working definition was established by the U.N. Secretary-General as:

...persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflicts, internal strife, systematic violations of human rights or natural or man-made disasters; and who are within the territory of their own country.⁵

The same report found that natural disasters, armed conflict, communal violence and systematic violations of human rights are among the causes of massive involuntary migrations within state borders.  Vulnerable and unable to find places of safety, internally displaced persons often suffer persistent violations of fundamental human rights, and their basic needs often go unmet.⁶

Despite the pressing nature of the problems facing the internally displaced, whose plight as uprooted people often does not differ much from refugees, there is no comparable treaty for protection of the internally displaced and no specific institution mandated to address their needs.  While international refugee law can be used by analogy for standard-setting, it is not directly applicable to the internally displaced: the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol which establishes the obligations of states towards refugees does not apply to persons within their own country.

There are numerous provisions within international law relevant to the rights of the internally displaced.⁷  International human rights treaties apply to the internally displaced (as well as to all persons present in a country), including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Specific treaties relating to the rights of women and children, to torture, and to racial discrimination may be relevant to particular protection concerns.  Where internal displacement takes place against the backdrop of armed conflict, international humanitarian law also applies.

In Kenya, the Moi government’s actions towards the internally displaced has consistently been in violation of its international legal obligations.  Under international law, governments must ensure that persons within their territory or jurisdiction are free from extra-legal or arbitrary killings, acts of violence and ill-treatment.  According to articles 6 and 7 of the ICCPR, which Kenya has ratified, every human being is guaranteed the inherent right to life and to be free from torture and cruel, inhuman or degrading treatment or punishment.  Governments also have a duty under Article 26 of the ICCPR to provide equal protection of the law.  The U.N. Human Rights Committee, which monitors the compliance of all states parties with the ICCPR, has emphasized that the state not only has a duty to protect those in its borders from such violations, but also to investigate violations when they occur and to bring the perpetrators to justice.⁸  A state may not choose to prosecute serious violations of physical integrity in a discriminatory fashion, protecting some individuals of certain ethnic groups and not others.  Forced displacement by its nature gives rise to massive violations of the international right of the internally displaced to choose their own residence and to move freely within their own region and country.  Freedom of residence and movement is guaranteed in article 12 (1) of the ICCPR.⁹

The guarantees of food, potable water, clothing, and housing are also of great importance to those who have been internally displaced.  Under international law, the Kenyan government is not allowed to discriminate in its fulfillment of its obligation to provide persons within its territory with the essentials needed for their survival.  Yet, the government periodically destroyed or prevented relief supplies from reaching camps in areas where it knew this would affect certain ethnic groups, while not obstructing assistance to other areas.  Under the ICESCR, which Kenya has ratified, the right to an adequate standard of living, including adequate food, clothing, and housing is recognized in article 11(1).  Access to medical care is recognized by article 12.  The Committee on Economic, Social and Cultural Rights has made clear in its general comments interpreting states’ obligations under the treaty that states parties bear a “minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights.”  The committee has held that a state party “in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is prima facie, failing to discharge its obligations under the Covenant” unless it can “demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”¹⁰ 

Primary responsibility for the rights of the internally displaced rests with their sovereign government, and any international assistance to an internally displaced population requires the acquiescence of the state.  However, where governments are unwilling or unable to uphold their international legal obligations to promote and protect human rights, the international community is legally entitled, if not obliged, to become involved.  International involvement usually occurs in such cases or when a government has invited an international presence to assist it with the problems of the internally displaced.  In situations of armed conflict or civil strife, a government may be either unwilling or unable to fulfill its responsibilities, or in some cases, may itself be responsible for the displacement.  In such cases, the need for international protection and assistance is all the more necessary.

The Representative of the U.N. Secretary-General on Internally Displaced Persons, Francis M. Deng, appointed in 1992, has emphasized the profound physical and psychological trauma suffered by the internally displaced as a result of their displacement.  On the run and often without documents, they have been more readily subjected to round-ups, forcible resettlement, and arbitrary detention.  They are more vulnerable to forced conscription and sexual assaults, and more regularly deprived of food and health services.  The highest mortality rates ever recorded during humanitarian emergencies have come from situations involving internally displaced persons.¹¹

The inadequacies of the international system for providing protection and assistance to the internally displaced has become increasingly apparent as the numbers of internally displaced have escalated rapidly.  In recent years, growing international concern has prompted the U.N. to begin to take steps to address the plight of the internally displaced.  Since 1990, the U.N. has undertaken a number of initiatives to improve its capacity.  Following a number of international conferences highlighting the plight of uprooted populations,¹² the General Assembly, at the recommendation of the secretary-general, determined in 1990 that UNDP resident coordinators based in the field could be assigned the function of coordinating assistance to internally displaced persons.  The following year, the U.N. created the position of emergency relief coordinator in order to improve the U.N.’s response to emergency situations, including those involving displaced populations.  Subsequently, the secretary-general created the Department of Humanitarian Affairs (DHA), to be headed by the emergency relief coordinator, to coordinate and facilitate timely and effective humanitarian responses at the U.N. secretariat.¹³  That same year, with concerns over protection mounting, the U.N. Commission on Human Rights requested the secretary-general to prepare an analytical report on internally displaced populations, which was later presented at the 1992 U.N. Human Rights Commission meeting.¹⁴

In order to focus further attention on the plight of internally displaced populations, two significant actions were taken in 1992.  First was the appointment of a representative of the U.N. secretary-general on internally displaced persons, at the request of the U.N. Commission on Human Rights, to focus on the human rights dimensions of internal displacement and to study ways and means of promoting increased protection and assistance to internally displaced populations.  Representative Francis Deng has been given the authority to discuss issues of internal displacement at senior governmental levels and to highlight the needs of internally displaced populations.  Second, a Task Force on Internally Displaced Persons was established by the Inter-Agency Standing Committee (IASC).  The IASC, which is composed of the heads of the U.N.’s major humanitarian and development agencies and several other organizations, is chaired by DHA and meets on an almost regular monthly basis.¹⁵  In December 1994, on the Task Force’s recommendation, the IASC designated the emergency relief coordinator of DHA to serve as the U.N’s reference point for all requests for assistance and protection in actual or developing situations of internal displacement.  The IASC also invited the representative on internally displaced persons and the high commissioner for human rights to participate in its work.  Although the IASC’s Task Force has reached agreement on crucial issues such as the appointment and responsibilities of humanitarian coordinators, it has much greater potential.

In August 1995, the fifty-four governments of the U.N. Economic and Social Council (ECOSOC) called for a review of the role, operational responsibilities, and capacities of the U.N.’s agencies in order to strengthen the coordination role in humanitarian emergencies.  The ECOSOC resolution 1995/56 came in response to both the growing recognition that relief, rehabilitation and development activities must often occur simultaneously, and attention to this issue in the secretary-general’s annual report calling for greater inter-agency coordination. The report argued that such a comprehensive review would “facilitate efforts by Member States to address possible constraints, gaps and imbalances in the system which has evolved rapidly in an ad hoc manner in recent years.”¹⁶  The ECOSOC resolution asked the relevant U.N. agencies to report back on these issues and to consider a range of other issues including training, delegation of authority to the field, operational, financial and evaluation reporting; and the value of formal operational agreements between agencies.  The resolution asked DHA to convene regular meetings with governments, U.N. agencies and other organizations to ensure that the matters raised in the ECOSOC resolution are coherently addressed.  Completion of this major evaluation is expected by the end of 1997 and will hopefully lead to a simple and effective coordination structure at the field level as well as minimum operating standards in the areas of human rights and protection among others.

Additionally, the representative of the U.N. secretary-general on internally displaced persons is currently preparing a body of principles, which will serve as a non-binding guide to governments and institutions.  This body of principles will recapitulate in one document the existing human rights obligations to the internally displaced, clarify the gray areas, and propose remedies for the identifiable gaps.  These principles will not create a new legal status for the internally displaced, but rather will highlight the needs of the displaced and articulate specific legal solutions derived from the existing guarantees.

Despite these encouraging steps, the international response to emergencies involving the displaced remains ad hoc, limited, and in many cases, unsatisfactory.¹⁷  Due to the widely differing situations and needs of internally displaced populations globally and the absence of a central U.N. agency tasked with protection of internally displaced, a variety of U.N. agencies have been involved in providing programs for the displaced.  The level of assistance varies from country to country, making for an uneven international response.  There is an ongoing debate as to whether strengthened implementation of the existing human rights norms, despite their shortcomings, is the best approach or whether changes to the international legal normative framework that specifically deal with the internally displaced should be made.  In either case, more needs to be done to protect the rights of the internally displaced, and the challenge to the international community is to find a way to respond to and address the unique needs of this group in the most effective manner.