RtoP and the Protection of the Internally Displaced

Dr. Phil Orchard

Diapositiva1Today, there are 68.5 million forced migrants globally. Yet, while much focus has been put on the expansion of refugee numbers – now up to     25.4 million – the dramatic growth of numbers of conflict-induced internally displaced persons (IDPs) -which now number 40 million – has    been virtually ignored.

This in spite of the fact that forced migration and atrocity crimes are inexorably tied together. Thus, in Syria today we see 6.2 million IDPs, many of whom have been displaced due to “indiscriminate and deliberate attacks” which the UN’s Independent International Commission of Inquiry has argued constitute war crimes. Thus, IDPs can be a product of atrocity crimes and an early warning sign as they seek to flee from genocide, ethnic cleansing, crimes against humanity, and war crimes. Or they can in themselves be a form of atrocity crime, deliberately displaced through ethnic cleansing and forcible transfers, with the latter qualifying as both a war crime and crime against humanity under the International Criminal Court’s Rome Statute.

But, while UN Secretary-General Ban Ki-moon acknowledged that asylum could provide one form of protection from atrocity crimes, and that the protection of both refugees and IDPs was a direct goal of the RtoP, there has otherwise been only limited engagement with specific mechanisms to do so.

In part this is because – unlike refugees – IDPs lack a binding convention at the international level. Instead they are protected only through the soft law Guiding Principles on Internal Displacement. But these Principles reflect established international human rights and humanitarian law as well as analogous refugee law. And, in Principle 6, they establish a clear explicit duty to prevent arbitrary displacement, including through ethnic cleansing or other practices aimed at altered the composition of the affected population as well as in situations of armed conflict.

The Principles have also played an important role in developing regional law, including the African Great Lakes Protocoland the African Union’s 2009 Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africawhich entered into force in 2012. The Kampala Convention adopts the Principles’ conception of arbitrary displacement. It also specifies that all state parties have a duty to refrain and prevent atrocity crimes against IDPs and, following Article 4(h) of the African Union’s Constitutive Act, that the AU has the right to intervene in such cases.

Beyond regional law, the Principles have also led to a range of laws and policies at the domestic level to protect and assist IDPs, with some forty countries now having adopted such instruments. Supporting the development of these instruments has been recognized by the UN General Assembly and by the United Nations High Commissioner for Refugees. But this is also an important Pillar 2 mechanism to ensure that IDPs fleeing atrocity crimes have their rights respected as much as possible during displacement, but also to ensure that they have access to durable solutions, including return to their homes, integration into a host area of the state, or resettlement elsewhere within the state.

However, the implementation record of these instruments is mixed. Less than half explicitly mention the Guiding Principles, and they frequently adopt more narrow definitions of IDPs than incorporated within the Principles. They have a tendency to prioritize returns over other forms of solutions, which frequently leave IDPs who cannot return (frequently a case with victims who have directly experienced traumatic events) with little assistance and support. In addition, less than a third of these instruments have been implemented without significant issues.

So what does work well? Successful laws and policies tend to be introduced early on in the displacement process, reflecting credible government commitments, or as part of wider peace agreements. And they tend to be supported by independent domestic institutions that can support the process and serve as accountability checks by engaging in monitoring, providing independent information and, where possible, seeking to ensure the government follows the outlined process. These institutions include the courts and national human rights institutions, but also national and local NGOs and other civil society organizations.

Therefore, while there is growing international recognition of the linkages between atrocity crimes and internal displacement, there are two distinct remaining problems. The first is that the explicit standards reflecting this are either in soft or regional law, rather clear international standards. The second is that while this has led to the creation of a number of domestic instruments, their record remains mixed. Both problems point to the need for further support by both the United Nations and its agencies and by civil society organizations at the international and domestic levels.

Phil Orchard is an Associate Professor of International Relations at the University of Wollongong and a Senior Research Fellow at the Asia-Pacific Centre for the Responsibility to Protect. His research focuses on international efforts to provide legal and institutional protections to forced migrants and war-affected civilians. He is the author of A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge University Press, 2014), which won the 2016 International Studies Association Ethnicity, Nationalism, and Migration Studies Section Distinguished Book Award, and the co-editor, with Alexander Betts, of Implementation in World Politics: How Norms Change Practice (Oxford University Press, 2014).His new book, Protecting the Internally Displaced: Rhetoric and Reality, is now available from Routledge.

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