On the Record

The Guiding Principles on Internal Displacement and their Pertinence to Governments in the ECOWAS Region

Erin D. Mooney

Introduction

I would like to begin my presentation on the Guiding Principles by making reference to the Accra Declaration on War Affected Children in West Africa, which was adopted at a ministerial conference of ECOWAS states in April 2000 and by heads of state in December of that year. In particular, I would draw attention to its provision calling on ECOWAS Member States to provide full protection, access and relief to internally displaced persons in accordance with the Guiding Principles on Internal Displacement. ECOWAS Member States therefore have a specific obligation to take into account the Guiding Principles. It follows that national authorities and officials should be aware of and become familiar with the Principles’ provisions.

The Guiding Principles on Internal Displacement (copies of which can be found in the conference packets) are the first international standards for internally displaced persons. They identify the rights of the internally displaced and the obligations of governments and other actors towards them.

The Development of the Guiding Principles

The Principles were developed by the Representative of the United Nations Secretary-General on Internally Displaced Persons, working in close collaboration with a team of experts in international law and in consultation with a wide range of international agencies and NGOs, regional organizations and experts in internal displacement worldwide. The process occurred over a four-year period. It culminated in 1998 when the Representative presented the Guiding Principles on Internal Displacement to the UN Commission on Human Rights in Geneva.

Several reasons had pointed to the need for the Principles. First, in the early 1990s, organizations engaged with the issue of internal displacement began to draw attention to the fact that there existed no document specific to internally displaced persons that could guide their work. Second, Governments in the UN Commission on Human Rights and General Assembly requested the Representative of the Secretary-General to study the extent to which existing international law addressed the needs of internally displaced persons and to develop an appropriate normative framework. In undertaking this study, the Representative took a holistic approach examining human rights law, international humanitarian law (the law applicable in situations of armed conflict which applies to states as well as non-state actors) and refugee law by analogy. Third, the Representative found that while there exists considerable protection in existing international law for internally displaced persons, there was a need to consolidate into one document all the relevant provisions and to address the gray areas and gaps that had been identified.

The areas of insufficient legal protection for the internally displaced fell into two broad categories. The first category concerned cases where there was a lack of explicit norms addressing certain needs of the internally displaced. For instance, there was no explicit right not to be arbitrarily displaced, even though the law implicitly supported this assertion. Nor was there an explicit right to restitution of or compensation for property lost as a consequence of displacement during armed conflict.

As to the second category of insufficient coverage, in many cases general norms existed in international human rights and humanitarian law but their applicability to the specific needs and circumstances of internally displaced persons needed to be spelled out. For example, while there existed a general human right guaranteeing 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 stipulating that internally displaced persons should not be returned to areas of danger in their own countries.

The Principles therefore undertook to restate existing provisions of law and make them relevant to the particular situation of the internally displaced. This approach is clearly evident in the language of the Principles. You can see this in Principle 20, for example. It begins by affirming that every human being has the right to recognition before the law and then specifies that the authorities shall issue to internally displaced persons all documents necessary for the enjoyment and exercise of their rights. This provision is important because in the course of displacement, personal documents often are lost or even confiscated. Principle 14 affirms the rights to liberty of movement and choice of residence and then spells out that internally displaced persons have a right to move freely in and out of camps and settlements. These two examples demonstrate how Guiding Principles restate general provisions of international human rights and humanitarian law and then tailor these to the specific needs and circumstances of the internally displaced.

Author

The development of Guiding Principles rather than a treaty was decided upon because it would have taken years, even decades, for a treaty to be drafted and ratified whereas guidance in responding to the growing number of situations of internal displacement was desperately needed. Moreover, as the legal study had found, sufficient international law applicable to internal displacement already existed. What was needed was to bring together into one instrument the various relevant provisions of the law and to tailor them to the specific needs and circumstances of the internally displaced. The thirty principles therefore consolidate in one concise document the rights and guarantees relevant to all phases of internal displacement.

Since their presentation to the United Nations in 1998, the Principles have gained significant international standing and recognition and are being widely and increasingly used in all regions of the world – a subject about which my colleague will address in the next presentation. I would just say by way of introduction that the Principles have become the standard point of reference for a growing number of Governments as well as for international agencies, non-governmental organizations and internally displaced persons themselves.

Content of the Principles

Let us now take a closer look at the content of the Principles &#150 and I would encourage you to do so literally, that is, in opening up your copy of the Principles and joining me on a brief walk through them.

As you can see, the Principles begin with an introduction that provides a description or working definition of internally displaced persons. This element of the document is quite significant because when the Representative began his work in 1992, no definition of IDPs existed. Certainly, having a definition for internally displaced persons is essential for counting this population and filling the most basic gaps in information and statistics. As mentioned in this afternoon?s earlier session, definitions also provide a solid and necessary basis for migration policy and legislation. The definition set forth in the introduction to the Principles has become the most widely used definition of internally displaced persons internationally.

The definition articulates that 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 border.

    There are two crucial elements to the definition: first, that of coerced or involuntary movement; and second, remaining within one’s national borders. The definition also includes the major causes of internal displacement, though the qualifier "in particular", makes clear that internal displacement is not limited to these causes alone, and therefore does not exclude the possibility of other 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, the definition does not extend to persons who migrate because of economic reasons because in most cases the element of coercion is not so clear. Though certainly this does not preclude the possibility that economic migrants may themselves become internally displaced, as for instance has been the case this past week in Cote d’Ivoire.

    There remains some controversy as to whether persons uprooted by natural disasters and developments projects should be considered internally displaced. 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 conflict. But persons uprooted by natural disasters and development projects are also, factually speaking, internally displaced and often also in need of humanitarian assistance and, in some cases, protection as well. I would just note that in West Africa over the past year, flash floods, drought and tornadoes variously have displaced tens, even hundreds of thousands of persons in their countries.

    The definition of internally displaced person, it should be emphasized, does not confer a legal status. This is not necessary, after all. Unlike refugees, who by definition are outside of their country of origin and require substitute legal protection, internally displaced persons are expected to enjoy the same rights as all other persons in their country. What the Principles seek to do is to acknowledge and address the unique needs and vulnerabilities arising as a result of their displacement.

    Section I of the Principles contains general principles. These stipulate that persons cannot be discriminated against because they are displaced. They also affirm that the Principles apply to all internally displaced persons, regardless of their national or ethnic origin, race, religion or political opinion; it would therefore not be acceptable to assist some internally displaced populations but neglect others on discriminatory grounds. At the same time, the principle of equality does not preclude undertaking of special measures for internally displaced populations, or particular groups of persons within them. Indeed, Principle 4 recognizes that special attention may be required to address the particular needs of certain internally displaced persons, such as children, especially unaccompanied minors; women, especially expectant mothers, mothers with young children and female heads of household; persons with disabilities; and the elderly.

    Finally, the general principles also emphasize that the primary duty for providing protection and assistance to internally displaced persons lies with their national authorities, and affirm that internally displaced persons have the right to request and receive such assistance from their national authorities. The theme of national responsibility is reflected throughout the Principles. Indeed, as stated in the introduction, the Guiding Principles are specifically intended to provide guidance to states faced with the phenomenon of internal displacement. They also provide guidance to other authorities and groups, which would include non-state actors. Moreover, as governments may be unable or even unwilling to fully discharge of their responsibilities towards internally displaced populations, there is often a role for the international community. Accordingly, the Guiding Principles also provide guidance to intergovernmental organizations, international agencies and non-governmental organizations. And certainly, they are an important document for internally displaced persons as well.

    The Principles then go on to address the different phases of displacement. Section II contains principles relating to protection from arbitrary displacement, articulating a right not to be arbitrarily displaced. This section of the Principles elaborates 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. States have a particular obligation to avoid displacement, especially of groups with a special dependency on and attachment to their lands. It is noteworthy that in the Accra Declaration, ECOWAS states commit to promote initiatives to avoid displacement.

    Section III, relating to protection and assistance during displacement, constitutes the main body of the Principles. This is a reflection of the fact that displacement typically exposes victims to vulnerabilities and risks. Uprooted from their homes and property, separated from their community support networks and even family, cut off from their resource base, internally displaced persons find themselves stripped of their usual means of subsistence and survival. They also become especially vulnerable to physical assault and other abuses. In many cases, internally displaced persons do not receive adequate shelter, food and medical care. Some of the highest rates of mortality this past decade have been among internally displaced persons.

    To address these circumstances, Section III sets out key elements from the wide range of civil, political, economic, social and cultural rights to which all persons are entitled and tailors these general rights to the specific needs of persons who become internally displaced. Principle 18, you can see, provides that internally displaced persons should have access to food, water, shelter, clothing, medical services and sanitation essential to their survival. A number of principles in this section concern protection of the physical security of internally displaced persons.

    Specific mention must be made of Principle 13, which unequivocally asserts that in no circumstances shall displaced children be recruited or take part in hostilities. Displaced children, especially unaccompanied minors, are particularly at risk of forcible recruitment and of becoming child soldiers – a problem that has been widespread in some West African countries.

    Special attention is paid to the integrity of the family. Principle 17 affirms the right to respect for family life and asserts that families have the right to remain together during displacement and that in the event of separation family reunion is to be expedited. Furthermore, Principle 16 provides that internally displaced persons have the right to know the fate and whereabouts of missing relatives.

    It is also important to highlight the protection provided in Principle 11 against gender-specific violence and abuse – this also has been a serious problem in the region. In early 2002, an assessment by the United Nations High Commissioner for Refugees and Save the Children UK exposed a widespread problem of sexual violence and exploitation of refugee and internally displaced children living in camps in Sierra Leone, Liberia and Guinea. Aid workers from local and international non-governmental organizations as well as UN agencies were found to be the main perpetrators of this abuse. Similar abuses have also been committed by peacekeepers. It is important to note that the Guiding Principles apply to UN staff, aid workers and peacekeepers as well as to Governments and insurgent groups.

    Landmines are another serious risk, with particular implications in situations of displacement. They pose a major impediment to the ability of civilians to flee as well as to their eventual return, with the added risk that displaced persons return with the disadvantage of not knowing where landmines were placed during their absence. It is reported that in some areas of the Casamance, for example, that the abundance of land mines has rendered 80% of farmland in the region unusable. In addition to posing a tremendous risk to physical safety, the presence of landmines means that many returning displaced persons are unable to safely resume their livelihoods. Guiding Principle 10 states that internally displaced persons must be protected against their use.

    I would also point out that the Guiding Principles, in particular Principle 15, reaffirm the right to seek asylum in another country. Sometimes the best protection for internally displaced persons is to become a refugee. At the same time, the focus on internally displaced persons cannot become an excuse for denying persons the right to flee their country.

    Mention already has been made of the need for authorities to ensure that internally displaced persons have all the necessary documents to exercise their legal rights. I would just highlight the importance of providing identification documents directly to individuals, rather than on a family basis, in order to avoid a situation where women heads of household or single women struggle to be recognized in the exercise of their rights, including to receive food and other assistance they need. In the registration processes for internally displaced persons that are currently underway in countries in the region, it would be appropriate to bear in mind this aspect of Principle 20.

    The participation of women in the design and distribution of humanitarian assistance provided for in Principle 18 is absolutely critical. As providers for their families, women play a central role in reducing the vulnerability not only of their family but also of entire communities affected by displacement. Yet, too often, women?s roles and capacities are left out of decision-making structures despite the fact that women and children make up the overwhelming majority of almost any given internally displaced population. As an illustration, during a mission to Burundi by the Representative of the Secretary-General on Internally Displaced Persons, when the Representative asked to meet with the spokespersons of a camp comprised of several thousand women and twenty-five men, only men came forward to discuss the problems of the camp. In parts of this region too, it has been reported that "the special needs of women and children are often not taken into full consideration, with men tending to control relief items". Consultation with women?s groups is often the most effective means of identifying the needs and capabilities of displaced populations and of organizing programs to assist them. Internally displaced women also should be consulted in any relocation process (see Principle 6) as well as during return or resettlement and reintegration in order to help ensure these solutions are durable.

    To assist internally displaced persons in meeting their subsistence needs, Principles 22 and 23 provide that income-generating and training programs should be made available as soon as possible. Special efforts are to be made to ensure the full and equal participation of internally displaced women. It must be underscored that doing so is important not only for promoting self-sufficiency but also for reducing the economic pressures leading some displaced women to more vulnerable to sexual exploitation and prostitution simply so as to ensure their and their families’ survival.

    Education is an area where the impact of displacement upon children is particularly devastating. Displacement inevitably disrupts normal educational patterns and alternative educational facilities may simply not exist in camps and settlements. In some countries in the West African region, there exists a serious lack of adequate educational services for internally displaced children. Principle 23 underscores the importance of the authorities ensuring the displaced children receive education and call for special efforts to be made to ensure the full and equal participation of girls and women in educational programs. I would note that in the Accra Declaration, ECOWAS States have committed themselves to provide the resources to maintain educational services for children, including internally displaced children, in conflict and post-conflict situations.

    Section IV of the Principles, on the provision of humanitarian assistance, reaffirms the primary role of the national authorities in providing assistance but affirms that when these authorities are unable or unwilling to provide assistance, international organizations have the right to offer their services and that consent shall not be arbitrarily withheld. Indeed, these organizations are supposed to be granted rapid and unimpeded access to the internally displaced. This section also underscores the importance of protecting the humanitarian workers who assist the internally displaced. This is a critical provision given the dangers to which aid workers increasingly are exposed worldwide, especially in active conflict zones where conditions of insecurity often seriously limit humanitarian access to the internally displaced.

    Section V of the Principles addresses solutions to internal displacement, in particular return or resettlement and reintegration. It emphasizes the right of internally displaced persons to return voluntarily and in safety and with dignity or to resettle voluntarily in another part of the country. Voluntary returns, in addition to being required by international standards, also are always the most effective form of return.

    Moreover, the Principles provide for the restitution or compensation for property and land lost as a result of displacement. When the majority of returnees are of rural origin, the return of land and restoration of property is essential to their resuming a normal life and regaining self-sufficiency. I would stress that property rights must extend to women. In a number of countries, displaced women who have lost their husbands and sons face difficulties in reclaiming property and land upon return. Finally, whether they opt for return or resettlement, generally most internally displaced persons will require reintegration support to rebuild their lives. Without such assistance, those returning risk becoming displaced again – a phenomenon that is not unknown in this region. In the Lomé Protocol of 1999, ECOWAS States acknowledge the need to support the reintegration of internally displaced persons and refugees as an important aspect of conflict resolution.

    Application of the Guiding Principles in the ECOWAS Region

    In the Declaration of the Dakar meeting of 2001, to which this week?s meeting is a follow-up, West African countries recommended the elaboration of national legislation on internal and international migration, both voluntary and involuntary in nature. In the drafting of national legislation, the Guiding Principles on Internal Displacement can serve as a source of guidance. Although the Principles are not binding in of themselves, they are based on law, which is binding. Moreover, for any Government that accepts international human rights and humanitarian law, one can say that the Principles simply restate and consolidate the law that should be applicable in situations of internal displacement. The Guiding Principles, which are based on international humanitarian law, human rights law and refugee law by analogy, thus should prove a useful tool that would help countries in the region in making their own national legislation and policy on internal displacement. To assist Governments with this task, it might be useful to turn to ECOWAS to draft a model law on internal displacement, based on the Guiding Principles, which could provide a template for national legislation.

    In addition, Governments can promote the dissemination of the Guiding Principles in their country, including by translating them into local languages as has been done in other parts of the world, as well as training in the Principles. Already, Government officials in the region have participated in national training workshops on the Guiding Principles, in particular in Liberia and Sierra Leone last year. Training programs usefully could be broadened to cover other countries and actors in the region, including peacekeeping units.

    The next presentation will highlight additional types of initiatives taken by Governments in other parts of the world to use the Guiding Principles to enhance promotion and protection of the rights of internally displaced persons. I would just note in closing that the Principles should also prove to be a useful tool and guide for Governments in the West African region in fulfilling national responsibility to effectively addressing the plight of their internally displaced populations.