International Conference on Kurdish Refugees and Internally Displaced Kurds

Introduction to the Guiding Principles on Internal Displacement

Introduction

Throughout the world, there are an estimated 20 to 25 million persons forcibly displaced within the borders of their own countries. They can be found in Africa, Asia, the Middle East, Europe and the Americas. Many are in desperate need of protection and assistance. The Guiding Principles on Internal Displacement were developed to provide a framework for dealing with this momentous problem.

As the first international standards for internally displaced persons (IDPs), the Guiding Principles identify the rights of the internally displaced and the obligations of governments toward these populations, and provide guidance to all other actors engaged with the internally displaced—international organizations, non-governmental organizations and non-state actors. This includes authorities who may rule areas in which internally displaced are found but which are not recognized as states, such as Kurdistan.

The Principles were developed by the Representative of the United Nations Secretary-General on Internally Displaced Persons, with the actual drafting done by a team of international legal experts in consultation with a wide range of international organizations, non-governmental organizations (NGOs) and research institutions worldwide. The process extended over a four year period. In 1998, they were presented to the UN Commission on Human Rights. Although not a binding document like a treaty, the Guiding Principles are based on binding law—human rights law, humanitarian law and refugee law by analogy—and their provisions are consistent with that law.

The Principles were developed for several reasons. First, international organizations and NGOs beginning in the early 1990s began to point out that there existed no document specifically applicable to internally displaced persons that could guide their work in the field. Second, governments in the UN Commission on Human Rights and the General Assembly specifically requested the Representative of the Secretary-General to develop an appropriate framework to guide national and international responses in situations of internal displacement. Third, there was need to raise visibility to the plight of internally displaced persons worldwide. It should be recalled that the whole issue of internal displacement did not come to the fore until the early 1990s coinciding with the creation of the safe area for internally displaced Kurds in northern Iraq. International attention needed to be directed toward this group of people whose numbers were growing dramatically as a result of a large number of civil wars. Fourth, after studying existing international law applicable to the internally displaced, the Representative found that there was a need to consolidate into one document all the relevant provisions of the law and to address the gray areas and gaps that the legal team had identified.

For example, the legal team found that in many cases general norms existed in international human rights and humanitarian law, but that their specific applicability to internally displaced persons needed to be spelled out. Thus, while a general norm existed on respect for family life, there was no specific provision providing that families separated by displacement should be reunited as quickly as possible. Or, while there was a general norm prohibiting cruel and inhuman treatment, there was no specific provision that stipulated that internally displaced persons should not be returned to areas of danger in their own countries. The Principles therefore undertook to restate the existing provisions of law and make them relevant to the internally displaced. Thus, if one looks at Principle 20: after reiterating the general norm that every human being has the right to recognition before the law, the principle spells out that the authorities concerned shall issue to internally displaced persons all documents necessary for the enjoyment and exercise of their legal rights. Or in the case of Principle 12, after stating that every human being has the right to liberty and security of person, it says that to give effect to this right for the internally displaced, they should not be interned or confined to a camp. The Guiding Principles thus take general principles of international humanitarian and human rights law and tailor them to the needs of the internally displaced.

Guiding Principles were decided upon rather than a legal instrument because it would have taken years, even decades, for a treaty to be drafted and ratified, whereas a document was needed now. Moreover, sufficient international law applicable to the internally displaced already existed. What was needed rather was the bringing together of all the provisions of the law into one instrument, which tailored them to the specific needs of the internally displaced.

Content of the Principles

Let us now take a brief walk through the Principles. They begin with an introduction that provides a description or working definition of internally displaced persons. This is quite important because when the Representative began his work in 1992, no definition existed of IDPs. The two crucial elements of the definition are first, coerced or involuntary movement—that is being forced or obliged to flee or to leave one's home or place of habitual residence—and second, remaining within one's national borders. The definition also includes the major causes of displacement &$150; armed conflict, generalized violence, violations of human rights and natural or human made disasters. Its use of the qualifier, in particular, however, makes clear that internal displacement is not limited to these causes alone, so as not to exclude future situations that might need special attention.

Basically, the definition tries to strike a balance between too narrow a framework that risks excluding people and one so broad that it could prove operationally unmanageable. For example, it does not extend to persons who migrate because of economic reasons because in most cases the element of coercion is not so clear. There was, however, and there still remains, some controversy over whether or not persons displaced by natural disasters and development projects should be considered IDPs. Some argue that the internally displaced should only be those who would be refugees if they crossed a border—that is, those who are fleeing from persecution and violations of their human rights. But persons uprooted by natural disasters and development projects are also factually speaking internally displaced; moreover there are many cases of natural disasters and development-induced displacement in which human rights and protection issues occupy a strong role.

The definition, it should be emphasized, does not confer legal status on the internally displaced. Unlike refugees, who are outside their countries of origin and require substitute legal protection, internally displaced persons are in their own countries and are expected to enjoy the same rights and freedoms as all other persons in their countries. What the Principles seek to do is to acknowledge and address their unique needs caused by the displacement. After all, displacement breaks up the immediate family, cuts off social and community ties, terminates employment, ends formal educational opportunities, deprives many of basic food, shelter and health services and makes the displaced populations especially vulnerable to acts of violence and human rights abuse.

Section I of the Principles contains general principles. These point out that persons can not be discriminated against because they are displaced and affirm that the Principles apply to all internally displaced persons regardless of their national or ethnic origin, race, religion or political opinion. It would not therefore be acceptable to help some internally displaced persons but decline to help others on discriminatory grounds. Such discrimination often occurs in countries where the government is at war with a minority and is only ready to help those of the same ethnic group as the government. At the same time, the Principles acknowledge that there are some internally displaced persons who may require special attention—children, especially unaccompanied minors; women, especially expectant mothers, mothers with young children and female heads of household; persons with disabilities; and elderly persons. The general principles also emphasize that the primary duty for providing protection and assistance to internally displaced persons lies with their national authorities, and that IDPs have the right to request and receive such assistance from these authorities.

The Principles then go on to address the different phases of displacement. Section II contains principles relating to protection from displacement and innovatively articulates a right not to be arbitrarily displaced. Indeed, this section provides a list of when displacement is not permissible, for example when it is based on policies of 'ethnic cleansing' or similar practices aimed at altering the ethnic, religious or racial composition of the affected population. Or when it is used as a collective punishment. Both of these prohibitions have particular relevance to the Kurds of Iraq as well as other countries. The Principles also provide minimum guarantees to be complied with should displacement occur. This has special relevance to the situation of Kurds in Turkey. States, moreover, are under a particular obligation to avoid displacement and to provide protection against the displacement of groups with a special dependency on and attachment to their lands.

Section III relating to protection during displacement is the main body of the Principles. This section sets forth the full range of civil, political, economic, social and cultural rights that all people should enjoy and tailor these general rights to the specific needs of the internally displaced. I would underscore that the Principles provide that internally displaced persons should have access to food, water, shelter, clothing, medical services and sanitation essential to their survival. And they also should be protected against human rights abuse, including direct assault, sexual violence, attacks on their camps and settlements, being arbitrarily detained or held hostage in camps, or being forcibly returned to or resettled to places where their life, safety, liberty and/or health would be at risk. In addition, their property and possessions should be protected against destruction and arbitrary illegal appropriation, occupation or use. In short, the Principles set an international minimum standard for the treatment of internally displaced persons.

Section IV on the provision of humanitarian assistance reaffirms the primary role of the national authorities in providing humanitarian assistance but affirms that when these authorities are unable or unwilling to provide assistance, international organizations have the right to offer their services and consent shall not be arbitrarily withheld. Indeed, these organizations are supposed to be granted rapid and unimpeded access to the internally displaced. We know, of course, that many governments, Turkey among them, have been restrictive about access. However, recently the Government of Turkey agreed to a visit of the Representative of the UN Secretary-General on Internally Displaced Persons. Furthermore, according to the Principles, organizations providing material assistance are expected to give due regard to the protection and human rights of the internally displaced. This is important because it underscores that the needs of the internally displaced encompass both material assistance and protection of physical safety and human rights and that organizations should focus on both. This section also underscores the importance of protecting the humanitarian workers who assist the internally displaced. This is a critical provision given the dangers and insecurities to which humanitarian staff are increasingly being exposed worldwide in their work on behalf of displaced populations.

Section V of the Principles addresses return, resettlement and reintegration and emphasizes the right of internally displaced persons to return voluntarily and in safety to their homes or to resettle voluntarily in another part of the country. In other words, internally displaced persons have options—they can return to their home areas or resettle in another part of the country. This section further provides for the recovery of property and for compensation or reparation if recovery is not possible. It also provides a role for international organizations and others in return, resettlement and reintegration. Emphasis is also given to the full participation of the internally displaced in the planning and management of their returns or resettlement. This is quite important because the involvement of the displaced will help make their returns or resettlement more sustainable.

Throughout the Principles, special attention is paid to the needs of women and children. For example, the Principles call for special efforts to ensure the full participation of women in the planning and distribution of food and supplies. And they call for special attention to the health needs of women, and affirm the equal rights of women to obtain documents. With regard to children, they prohibit forced recruitment into armed forces, assert that internally displaced children should receive free and compulsory education at the primary level, and require that special efforts should be made to reunify children with their families.

Standing of the Principles

What is the current international standing of the Principles? The Principles, as noted earlier, are not a legally binding treaty, but they are based on provisions of international law which are binding, and they have come to acquire over the past few years a good deal of international standing and moral authority. Intergovernmental organizations, most notably the UN Commission on Human Rights and the General Assembly, have acknowledged the Principles and now in their resolutions tell the Representative of the Secretary-General to use them in his dialogues with governments, intergovernmental organizations and NGOs and call upon UN agencies, regional bodies and NGOs to disseminate and apply them. This year's Commission resolution, adopted unanimously in April 2001 by 53 states, "notes with appreciation that an increasing number of States, United Nations agencies, and regional and non-governmental organizations are making use of the Guiding Principles." The resolution also "encourages the further dissemination and application of the Guiding Principles."

The United Nations Secretary-General has called upon the Security Council to encourage states to observe the Principles in situations of mass displacement. And the Security Council has begun to cite the Principles in its resolutions and Presidential statements. Further, it should be noted that all the main international humanitarian, human rights and development organizations and NGO umbrella groups, comprising the UN's Inter-Agency Standing Committee, have endorsed the Principles and taken the decision to disseminate and apply them in the field.

Regional intergovernmental organizations have also been disseminating and applying the Principles. And several have formally endorsed them and use the Principles as a yardstick for measuring conditions in particular countries. The Organization for Security and Cooperation in Europe (OSCE), for example, held a special meeting on internal displacement in 2000 which recommended that the Principles serve as a framework for OSCE activities in this area. Should the OSCE begin to monitor situations of internal displacement and use the Principles as a framework, such activities would be relevant to the Kurds in Turkey. Similarly, the Council of Europe is considering more systematic attention to situations of internal displacement and possible use of the Guiding Principles.

Most encouraging is that governments are increasingly using the Principles as guidelines in dealing with situations of internal displacement. Several have begun to base policy and law upon their provisions. For example, in Sri Lanka, the Philippines, Georgia, Armenia, Colombia and Burundi, governmental agencies have begun to use the Principles as the basis for policy, and in Angola, the Principles have been incorporated into law. Moreover, in Colombia, the Constitutional Court has cited the Guiding Principles in two leading decisions on IDPs, thus creating judicial precedent.

There are, however, some governments that have objected to the Principles on the grounds that they were not drafted in an intergovernmental process. And it is true that these are the first international standards accepted and used by the UN, which have not been drafted by governments. In fact, they may represent a growing trend whereby non-governmental actors take steps to influence governments and international organizations where there are international gaps. But it should also be borne in mind that it was governments that requested the Representative to prepare a normative framework for internally displaced persons and that the Representative kept the governments regularly informed about his progress in developing the Principles. Moreover, the very governments which have raised objections have also voted for the UN resolutions promoting the dissemination and application of the Principles. Most recently at the World Conference against Racism, the final documents, unanimously agreed to, encouraged the UN system and governments to promote and make use of the Guiding Principles.

This would seem to indicate that the value of the Principles—their use—is serving to override other concerns. Indeed, the Government of India, which has raised questions, told the UN that although governments have not drafted the Principles, the document is a useful guide. Moreover, most governments claim to accept international humanitarian and human rights law; if that be true, then principles which restate that law should be acceptable.

Non-governmental organizations, of course, have been at the forefront of using the Guiding Principles as a vehicle for bringing about improved treatment for internally displaced persons. They find them a useful tool to monitor conditions and advocate for the needs of the internally displaced. In the South Caucasus region, for instance, lawyers from Armenia, Azerbaijan and Georgia have been reviewing their national legislation in terms of the Guiding Principles, and the Georgian Government has indicated its intention of revising some of its laws in terms of the Principles. Indeed, throughout the world, NGOs are creatively using the Principles as an advocacy tool with governments, to monitor conditions on the ground in terms of the Principles and as a benchmark for suggesting changes in laws and practices. Displaced communities too have begun to use the Principles as an empowerment tool for their own communities. In support of all these efforts, the UN together with the Brookings Institution Project on Internal Displacement has published a Handbook on how specifically to apply the Principles in the field.

The Principles themselves, it should be noted, are available in languages that Kurdish groups can use, namely, Arabic and Turkish. Kurdish organizations may also find it useful to translate the Principles into the Kurdish language.

In conclusion, worldwide usage and implementation of the Principles can help raise visibility to the plight of internally displaced persons and also will result in broader acceptance of their provisions. Some even speak of the Principles in time becoming customary law. For the present, because the Principles do not contain any monitoring or enforcement machinery, a global effort is needed to do the monitoring, advocacy and intercessions on the basis of the Principles. The Representative of the Secretary-General, various UN bodies and NGOs are pressing for their wide implementation worldwide. Hopefully such campaigns will prove useful in helping to promote greater well being and security for internally displaced Kurds. To be sure, the existence of standards for the internally displaced will not have impact on governments like Iraq which has forcibly uprooted much of its Kurdish population and has committed crimes against humanity and war crimes against them. But the Principles can prove useful to the authorities in the north of Iraq in Kurdistan and can have influence on other governments. Awareness of rights and of responsibilities is important and can prove valuable in the long struggle for dignity and safety for internally displaced populations.