| by Dr. Ruwantissa Abeyratne
( March 12, 2013, Montreal, Sri Lanka Guardian) According to a Declaration issued by the International Law Association, entitled “International Law Association, Declaration of International Law Principles on Internally Displaced Persons” issued on 29 July 2000” the term "internally displaced persons" (IDPs) refers to "persons or groups of persons who have been forced to flee or leave their homes or places of habitual residence as a result of armed conflicts, internal strife or systematic violations of human rights, and who have not crossed an internationally recognized State border."
This definition applies also to persons internally displaced by whatever causes, such as natural or man-made disasters or large-scale developmental projects, whenever the responsible State or de facto authority fails, for reasons that violate fundamental human rights, so that it protects and assists those victims.
The Declaration provides that internally displaced persons are required to be protected and assisted in accordance with all generally accepted and, where appropriate, regionally agreed upon, human rights, refugee and humanitarian law. Notwithstanding that preferential treatment shall be accorded to certain internally displaced persons, such as expectant mothers, mothers with young children, unaccompanied minors, persons with disabilities and elderly persons, there should be absolutely no discrimination made on the basis of race, color, sex, gender, language, religion or belief, political or other opinion, national, ethnic or social origin, legal or social status, age, disability, property, birth, or any other similar criteria.
Internally displaced persons are entitled to all the rights conferred by international human rights law including, whenever applicable, those rights secured for aliens as refugees and stateless persons and have the right to seek and to receive, freely and in security, all humanitarian assistance and protection from national and de facto authorities, as well as duly authorized international organizations.
The Declaration also calls for IDPs to have full freedom of movement, including the right not to be arbitrarily displaced, and this right has to be respected to the fullest extent possible in accordance with international law. No one should be compelled to leave his or her home or place of habitual residence due to persecution or discrimination based on race, color, sex, gender, language, religion or belief, political or other opinion, national, ethnic or social origin, legal or social status, age, disability, property, birth, or any other similar criteria, or subject to such persecution or discrimination subsequent to displacement. All internally displaced persons have the right to return to their homes or places of habitual residence freely and in security and dignity, as soon as the conditions giving rise to their displacement have ceased.
IDPs should be provided with identity papers issued by appropriate authorities to enable them to fully enjoy all rights provided for under the Declaration. All internally displaced persons, especially children separated from their parents or other family members, are entitled to the right to family reunification.
National authorities, whether de jure or de facto, have the primary responsibility to protect and assist internally displaced persons within their jurisdiction. In the implementation of the Declaration, States and the international community are required to respect the territorial sovereignty of all States and the principle of noninterference in their internal affairs, in accordance with the Charter of the United Nations and the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States.
One of the most significant, and indeed valuable rights enshrined in the Declaration is that humanitarian assistance and/or protection properly provided to IDPs by States, de facto authorities or the international community are not to be deemed an interference in the internal affairs of the country of displacement.
The Declaration deems it important that States take joint and separate action in cooperation with the United Nations and other international organizations, both governmental (including regional) and nongovernmental, in addressing the root causes of internal displacement with a view to adopting preventive measures and obtaining durable solutions. In order to ensure this objective is reached, States, de facto authorities, the United Nations and other international organizations, both governmental (including regional) and nongovernmental, are required to cooperate with one another to establish and maintain appropriate institutional arrangements to implement the provisions of the Declaration.
Another compelling provision in the Declaration is that States and de facto authorities are required to adopt all necessary measures to ensure that internally displaced persons have free and safe access to international assistance and, wherever appropriate, to protection by duly authorized organizations and that such assistance not be diverted for military, political, or other purposes.
The Declaration also states that if the Security Council decides that the nature and scope of a situation of internal displacement constitute a threat to international peace and security and, in accordance with the Charter of the United Nations, orders that appropriate measures be taken, States, de facto authorities and international organizations, both governmental (including regional) and nongovernmental, are required to provide protection and assistance to internally displaced persons, as well as address the root causes that gave rise to the situation.
The International Law Association, at its 69th Conference held in London, United Kingdom, from 25-29 July 2000 considered the Declaration of International Law Principles on Internally Displaced Persons and adopted it through its Resolution No. 17/2000 on Internally Displaced Persons. Notably, the International Law Association requested its Secretary-General to distribute the Declaration together with the Committee's Report to the Secretary-General of the United Nations, the UN High Commissioner for Human Rights, UNHCR, UNWRA, ICRC and other relevant international agencies, with the request that they distribute the Declaration to their respective Member States. The Declaration followed two earlier ILA proclamations relating to the forced movement of people: the Declaration of Principles of International Law on Mass Expulsion, adopted in Seoul in 1986; and the Declaration of Principles of International Law on Compensation to Refugees, adopted in Cairo in 1992. All three instruments address forced movement from the perspective of the responsibility of countries of origin.
There are three significant facts that emerge from this Declaration. Firstly, that it is now known to all States that are members of the United Nations. Secondly, that IDPs have the full protection of international human rights laws. Finally, that States are requested to act in collaboration and cooperation with the United Nations in securing the rights and interests of IDPs.
Many still believe that the effectiveness of the United Nations stops at the doorstep of State sovereignty. In modern international parlance, this is not so. Dr. Rudi Teitel, Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics, Global Governance, in her book Humanty’s Law (Oxford University Press: 2011) says: “ sovereignty is no longer a self-evident foundation for international law. This shift is driving the move from the State-centric normative discourse of global politics – which had prevailed until recently – to a far ranging, transnational discourse in which references to changed subjectivity have consequences. That new discourse is constructed more among humanity law lines”. This statement is consistent with the pronouncement of the International Criminal Tribunal for the former Yugoslavia which in its adjudication of Prosecutor v. Dusko Tadic said: “a state-sovereignty oriented approach has been gradually supplanted by a human being oriented approach”.
Thomas Jefferson once wrote that the purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interests of the governed, not for the governors. As Benjamin Franklin wrote, "In free governments the rulers are the servants and the people their superiors and sovereigns." The ultimate powers in a society, therefore, rest in the people themselves, and they should exercise those powers, either directly or through representatives, in every way they are competent and that is practicable. There are two broad reasons for this shift: the natural historical progression of world affairs which shifted trends chronologically; and the growing instances of torture, rape and killings in circumstances of internal strife and military warfare.
This shift led to the solid grounding of international society in an area of law called humanitarian law, encompassing human rights. From there came international criminal justice. Spawned by the Nuremberg rules which were formulated on the basic observation of Justice Robert Jackson who said: “Of course, it was, under the law of all civilized peoples, a crime for a man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made it a legally innocent act?”, international criminal justice has, through its ancestor – the Nuremberg rules –made crimes against humanity positive law.
Is depriving protection and assistance to IDPs a crime against humanity? I will leave that to the reader to decide.
The author is Senior lawyer at the International Civil Aviation Organization, a specialized agency of the United Nations, located in Montreal
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