On the Record

Iraqi Internal Displacement and International Law

Elizabeth Ferris

I want to begin by commending you for focusing this panel discussion on Iraqi refugees and displaced and to thank you for giving me the opportunity to speak to you today.

A few words of background on internal displacement in Iraq

According to the latest statistics from the International Organization for Migration, there are about 2.5 million internally displaced persons in Iraq, of whom 1.2 million have been displaced since the February 2006 bombing of the Golden Mosque in Samarra which unleashed a dramatic escalation of sectarian violence in the country.[1] Let me make a few comments about the Iraqi IDP situation generally, before turning to the question of international law and displacement and concluding by highlighting a number of challenges.

First, like the Iraqi refugees in neighboring countries, Iraqi IDPs live in urban areas. Some 80% of the IDPs in the country are from Baghdad, many of whom have moved to other neighborhoods in the capital city. Internal displacement is also a national problem. Every one of Iraq’s 18 governorates has registered internally displaced persons. As in other IDP and refugee situations, some 80% of the IDPs are women and children. One of the consequences of the high Iraqi casualties in the last 4 years – the vast majority of whom have been male — has been the fact that many households are now headed by women in a context where female participation in the labor force has been low and where women in some regions are killed or punished for working outside the home.

Again like the Iraqi refugees, the overwhelming majority of IDPs are not living in camps. They are renting houses, living with family and friends, or living in abandoned buildings. Only 1- 2 percent of IDPs are living in tented camps, but the pressure to establish more camps is growing. The fact that Iraqi IDPs are living among the urban population and are not concentrated in camps is undoubtedly one of the reasons that they have been virtually invisible and have received so little media attention.

The displacement of Iraqis is taking place in a context of high unemployment, decreased access to basic food rations, and declining standards of living. A majority of Iraqis still do not have access to clean water or basic sanitation.[2] Shortages of electricity in some parts of the country cause serious hardships. Transportation within the country has become difficult as a result of the war; it is dangerous for people to go to work when they have jobs and it is difficult for businesses to keep going because of the difficulties in getting supplies. Although data are limited, it is thought that IDPs are more likely to be unemployed than those who are not displaced and less likely to be able to access the Public Distribution System (PDS) through which most Iraqis receive food rations. This has clear implications for families and friends who are hosting IDPs. Their resources are stretched by the presence of the displaced in their communities.

International law and displacement

There is no “IDP convention” for those displaced within the borders of their own country which parallels the 1951 Refugee Convention. But there are legal norms and standards relating specifically to internal displacement which bring together international humanitarian law, human rights law and, by analogy, refugee law.

Specifically the Guiding Principles on Internal Displacement serve as an international standard to guide governments as well as international humanitarian and development agencies in providing assistance and protection to IDPs. The Principles identify the rights and guarantees relevant to the protection of the internally displaced in all phases of displacement: providing protection against arbitrary displacement, offering a basis for protection and assistance during displacement, and setting forth guarantees for safe return, resettlement and reintegration.

The Guiding Principles clearly apply to people displaced inside Iraq – whether they were singled out for persecution or fled generalized violence or sectarian threats.

“internally displaced persons 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 generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”[3]

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International law and the Guiding Principles make it clear that the Iraqi national government is responsible for protecting and assisting IDPs within its jurisdiction.[4] (I should note that in the early months following the US-led invasion, there was lively discussion within the international legal community about whether the US had responsibilities as an occupying power under international humanitarian law, such as providing for the well-being and security of the local population.)[5]

Protection from displacement.

The Guiding Principles state that “every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.” This prohibition of arbitrary displacement includes displacement “based on policies of apartheid, ‘ethnic cleansing’ or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population.” [6]

In Iraq today, people are being arbitrarily displaced from their homes by armed groups or militias in order to change the sectarian demography of the country. Sunnis are being forced from mixed neighborhoods to Sunni neighborhoods. Shi’a are being forced from mixed neighborhoods to Shi’a neighborhoods.[7] In a recent report on the reasons for displacement, IOM found that 62% of Iraqis were displaced because of direct threats on their lives. Of those who reported feeling specifically targeted, over 86% said that the reason was their belonging to a certain religion or sect.[8]

The Iraqi government has a responsibility to protect people from this displacement, but has been unable to do so.

Protection during displacement

Author

The Guiding Principles spell out a number of basic human rights which IDPs have even when they are displaced, including:

  • the right to life (principle 10)
  • the right to dignity and physical, mental and moral integrity (11)
  • the right to liberty and security of person (12)
  • protection against discriminatory practices of recruitment into any armed forces or groups (13)
  • the right to liberty of movement and freedom to choose his or her residence (14)
  • the right to seek safety in another part of the country and the right to leave their country (15)
  • the right to know the fate and whereabouts of missing relatives (16)
  • the right to respect of his or her family life, including thatfamily members who wish to remain together shall be allowed to do so (17)
  • the right to an adequate standard of living (18)
  • the right to medical care (19)
  • the right to recognition everywhere as a person before the law, including having access to necessary documentation (20)
  • the right to be protected from arbitrary deprivation of property and possessions (21)
  • protection from discrimination, including the right to vote and to participate in governmental and public affairs (22)
  • and the right to education (23)

Space does not allow me to review how well these rights are being upheld now for Iraq’s internally displaced person, although I can say that the record for protecting these basic human rights of Iraq’s IDPs is pretty abysmal. The reason for this is clearly the political and security situation throughout the country. But it is also a question of capacity. For example, the Iraqi government has not yet adopted a policy on internal displacement which would provide a legal basis for the exercise of these rights. The capacity of the Iraqi government to respond to these issues is limited, yet it is clearly the responsibility of the government – particularly both the Ministry of Human Rights and the Ministry for Displacement and Migration — to protect and uphold the rights of IDPs.

Let me focus on just three of the rights which have not received widespread attention from the general public: the rights to freedom of movement, to family life, and to property.

“Every internally displaced person has the right to liberty of movement and freedom to choose his or her residence.” Principle 14.

Freedom of movement for Iraq’s IDPs, and for Iraqi citizens generally, is becoming limited. According to a report this week by IOM, most of Iraq’s 18 governorates have either closed their borders to IDPs or have restricted entry (requiring, for example, a sponsor or proof of former residence in the governorate, or prohibiting IDPs from bringing their property with them.)[9] Local authorities are implementing these restrictions because their infrastructure and social services are over-stretched. They are also concerned about the potential impact of the displaced on their own security situation.

What does it mean for IDPs when they don’t enjoy freedom of movement? With the virtual closure of the borders for all of Iraq’s neighboring countries and increasing restrictions on internal flight, this means that people who are threatened or who fear for their lives have no place to go in search of safety. This raises questions about the most basic human right – the right to life and security of the person.

Every human being has the right to respect of his or her family life.

To give effect to this right for internally displaced persons, family members who wish to remain together shall be allowed to do so. Principle 17.

This right is being violated in several ways. Most obviously, some 35% of Iraqis are living in mixed-marriages, most typically where one of the spouses is Sunni and the other are Shi’a. A report by National Public Radio indicates that before the US invasion, fully half of all marriages registered in the main Baghdad family court were mixed. Of the marriages registered in the same court a few months ago, only 5 percent are mixed couples.[10] This is an obvious result of the sectarian violence and increasing sectarian homogenization, but there are still many couples in mixed marriages who face difficult choices. Some couples separate in order to be safe. And for those couples who are choosing to stay together, there are obvious risks. As the recent IOM report states:

The further ethnic homogenisation of Iraqi governorates, districts and neighbourhoods has increased the vulnerability of thousands of mixed-marriage families. Often, these families cannot find adequate protection in homogeneous areas since they are targeted by armed factions on both sides.”[11]

No one shall be arbitrarily deprived of property and possessions.

The property and possessions of internally displaced persons shall in all circumstances be protected, in particular, against the following acts:

(a)
Pillage;

(b)
Director or indiscriminate attacks or other acts of violence;

(c)
Being used to shield military operations or objectives;

(d)
Being made the object of reprisal; and

(e)
Being destroyed or appropriated as a form of collective punishment.

Property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation, or use. Principle 21.

The question of property is a big issue in Iraq – as in most situations of internal displacement – and it will become a major stumbling block for reconciliation in the future. According to IOM and UNHCR, about 25% of Iraq’s IDPs cite a main reason for their displacement as “forced displacement from property.”[12] Although over half of Iraq’s IDPs said that they didn’t know the status of their property left behind, about 17% indicated that it had been destroyed and about 34% said that it was being occupied by others, mainly by other private citizens.[13]

If these results hold nationally, the issue of property rights is a ticking timebomb. Even in the best case scenario – that security is restored in Iraq, that the economic situation improves, and that most of Iraq’s 5 million refugees and IDPs return home – it is likely that issues of property restitution and compensation will be on the agenda for decades. In fact, if less than half of the refugees and IDPs return home – say 2 million and if a third of those find their lands occupied by others – that is a potential caseload of over 650,000 property claims.

Let’s look at the Commission for the Resolution of Real Property Disputes which was established in March 2006 to carry on the work of another Iraqi governmental agency, operating since 2004 to address violations of property rights occurring between 17 July 1968 and 9 April 2003. The Baghdad-based Cassation Commission, responsible for reviewing claimants’ appeals from any of the 32 judicial committees, is terribly backlogged. According to IOM’s Peter van der Auweraert, “At the current pace, it is estimated that it will take the Cassation Commission close to thirty years to finish its projected caseload.” As of April 2006, around 132,000 property claims had been filed with the CRRPD from inside Iraq alone.[14] This number represents only IDPs that owned (and not rented) property, and whose property still stands, indicating the enormity of the property challenge. Records show that less than 22,000 of the 132,000 claims have been settled.[15] Moreover, there are still original claims to be submitted from those displaced during the Saddam Hussein regime.

The issue of conflicts over property and the need to set up mechanisms to resolve these conflicts will clearly be an enormous challenge to a future Iraqi government which will have many other priorities. As Brookings consultant, Rhodri Williams, has argued, there are measures which can be taken now to make future challenges over property less onerous.[16] But it seems that there are very few who are paying attention to this task.

Principles Relating to Return, Resettlement and Reintegration

A third section of the Guiding Principles refers to the responsibility of national authorities to find durable solutions for IDPs – either return to their communities, or integration into the communities to which they have been displaced or settlement in another part of the country.

Competent authorities have the primary duty and responsibility to displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. (Principle 28)

IDPs shall not be discriminated against. Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions. (Principle 29)

While the conflict in Iraq is not yet resolved – and there are conflicting views as to whether the improvements in security in central and western Iraq over the past six months can be sustained — it is important to begin thinking about the longer-term future of Iraq’s IDPs. What are the conditions under which return should be encouraged? What kind of support can the Iraqi government provide to those who are returning or settling in other parts of the country? What are the implications of the present sectarian separation – both a cause and consequence of displacement – on the future of Iraq as a country? Fundamentally, these are questions for the Iraqi government. However, given the political realities, it is important that the US government – including the US military, State Department and USAID – give careful attention to these questions now. It is also important for the international community and human rights groups to look at plans that are being made and that are eventually implemented.

And specialists in international human rights law – like many of you here today – have a particular role to play. The bottom line is that IDPs in Iraq have fundamental human rights – rights which are presently being violated on a very large scale.




[1] IOM, Emergency Needs Assessments, Biweekly report, February 2007.

[2] Oxfam, NCCI, “Rising to the Humanitarian Challenge in Iraq,” Briefing paper, July 2007.

[3] Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement, 2nd edition, 2004.Introduction, para 2.

[4] “National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction.” Principle 3.1, Guiding Principles.

[5] See for example, Jordan J. Paust, “The U.S. as Occupying Power Over Portions of Iraq and Relevant Responsibilities under the Laws of War,” ASIL Insights, April 2003. www.asil.org/insights/insigh102.htm;

Human Rights Watch, The War in Iraq and International Humanitarian Law, May 2003, http://www.hrw.org/campaigns/iraq/ihlfaqoccupation.htm; Amnesty International, “Iraq: Responsibilities of the Occupying Powers,” 2003, http://www.amnesty.org/en/alfresco_asset/baa7ce9d-a56d-11dc-a92d-271514ed133d/mde140892003en.doc

[6] Principle 6.1, Guiding Principles.

[7] Victor Tanner, Ashraf Khalidi, and Sophia Hoffmann, “Iraqi Refugees in the Syrian Arab Republic: A Field-Based Snapshot,” The Brookings-Bern Project on Internal Displacement, June 2007. http://www3.brookings.edu/fp/projects/idp/200706iraq.pdf

[8] IOM, Anbar, Baghdad and Diyala Governorate Profiles, December 2007, p. 4. Figures reported above are national averages.

[9] IDP Working Group, Internally Displaced Persons in Iraq Update,, 3 February 2008, pp. 15-16.

[10] Anne Garrels, “Sectarian Violence in Iraq Slows Mixed Marriages,” NPR, 27 October 2007. http://www.npr.org/templates/story/story.php?storyId=15691287

[11] IDP Working Group Report, 3 February 2008, p. 6.

[12] IOM, Governorate Profiles: Anbar, Baghdad, and Dyala, December 2007. p 4. (Figures are for national aggregations)

[13] Ibid., p. 13.

[14] Ibid.

[15] Internal Displacement Monitoring Centre, “Iraq – A Displacement Crisis: A Profile of the Internal Displacement Situation,” 30 March, 2007. http://www.internal-displacement.org/8025708F004BE3B1/(httpInfoFiles)/129E903BAA2C8245C12572AE002EE88A/$file/Iraq+-March+2007.pdf

[16] Rhodri C. Williams, “Applying the Lessons of Bosnia in Iraq: Whatever the Solution, Property Rights Should be Secured,” The Brookings-Bern Project on Internal Displacement, 8 January 2007. https://www.brookings.edu/papers/2008/0108_iraq_williams.aspx

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