Protecting the Internally Displaced: Rhetoric and Reality 9781315756189, 9781138799226

Citation preview

i

Protecting the Internally Displaced

Today, there are over 40 million conflict-induced internally displaced persons (IDPs) globally, almost double the number of refugees. Yet IDPs are protected only by the soft-law Guiding Principles on Internal Displacement at the global level. Instead of a dedicated international organization, IDPs receive protection and assistance only through the UN’s cluster approach. Orchard argues that while an international IDP protection regime exists, many aspects of it are informal, with IDP issues bound up in a humanitarian regime complex that divides the mandates of key organizations and even the question of IDP status itself. While the Guiding Principles mark an important step forward, implementation of laws and policies based on them at the domestic level remains haphazard. Action at the international level similarly reflects an all-too-often ad hoc approach to IDP issues. Through an in-depth examination of IDP efforts at the international level and across the 40 states which have adopted IDP laws and policies, Orchard argues that while progress has been made, new and greater monitoring and accountability mechanisms at both the domestic and international levels are critical. This work will be valuable to scholars, students, and practitioners of forced migration, International Relations theory, and the Responsibility to Protect doctrine. Phil Orchard is Associate Professor of International Relations at the University of Wollongong and a Senior Research Fellow at the Asia-Pacific Center for the Responsibility to Protect. He holds a PhD from the University of British Columbia, and previously served as the Assistant to the Representative of the United Nations Secretary-General for Internally Displaced Persons between 2001 and 2002. 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. He is also the co-editor, with Alexander Betts, of Implementation and World Politics: How International Norms Change Practice (Oxford University Press, 2014).

Routledge Global Institutions Series Edited by Thomas G. Weiss The CUNY Graduate Center, New York, USA

Rorden Wilkinson University of Sussex, Brighton, UK

About the series The “Global Institutions Series” provides cutting-edge books about many aspects of what we know as “global governance.” It emerges from our shared frustrations with the state of available knowledge—electronic and print-wise, for research and teaching—in the area. The series is designed as a resource for those interested in exploring issues of international organization and global governance. And since the first volumes appeared in 2005, we have taken significant strides toward filling conceptual gaps. The series consists of three related “streams” distinguished by their blue, red, and green covers. The blue volumes, comprising the majority of the books in the series, provide user-friendly and short (usually no more than 50,000 words) but authoritative guides to major global and regional organizations, as well as key issues in the global governance of security, the environment, human rights, poverty, and humanitarian action among others. The books with red covers are designed to present original research and serve as extended and more specialized treatments of issues pertinent for advancing understanding about global governance. And the volumes with green covers—the most recent departure in the series—are comprehensive and accessible accounts of the major theoretical approaches to global governance and international organization. The books in each of the streams are written by experts in the field, ranging from the most senior and respected authors to first-rate scholars at the beginning of their careers. In combination, the three components of the series—blue, red, and green— serve as key resources for faculty, students, and practitioners alike. The works in the blue and green streams have value as core and complementary readings in courses on, among other things, international organization, global governance, international law, international relations, and international political economy; the red volumes allow further reflection and investigation in these and related areas. The books in the series also provide a segue to the foundation volume that offers the most comprehensive textbook treatment available dealing with all the major issues, approaches, institutions, and actors in contemporary global governance—our edited work International Organization and Global Governance (2014)—a volume to which many of the authors in the series have contributed essays.

Understanding global governance—past, present, and future—is far from a finished journey. The books in this series nonetheless represent significant steps toward a better way of conceiving contemporary problems and issues as well as, hopefully, doing something to improve world order. We value the feedback from our readers and their role in helping shape the on-going development of the series. A complete list of titles can be viewed online here: https://www.routledge.com/ Global-Institutions/book-series/GI. Multinational Rapid Response Mechanisms (2019)

by John Karlsrud and Yf Rykers The IMF, the WTO & the Politics of Economic Surveillance (2019) by Martin Edwards Accessing and Implementing Human Rights and Justice (2019) by Kurt Mills and Melissa Labonte Protecting the Internally Displaced (2019) Rhetoric and Reality by Phil Orchard Moral Obligations and Sovereignty in International Relations (2019) A Genealogy of Humanitarianism by Andrea Paras A League of Democracies (2019) Cosmopolitanism, Consolidation Arguments, and Global Public Goods by John Davenport Global Business Associations (2019) by Karsten Ronit Global Governance and China (2018) edited by Scott Kennedy The League of Nations (2018) by M. Patrick Cottrell The British Media and the Rwandan Genocide (2018) by John Nathaniel Clarke UNHCR as a Surrogate State (2018) by Sarah Deardorff Miller

Global Trends and Transitions in Security Expertise (2018) by James G. McGann Human Rights and Conflict Resolution (2018) edited by Claudia Fuentes Julio and Paula Drumond The Use of Force in UN Peacekeeping (2018) edited by Peter Nadin Sovereign Rules and the Politics of International Economic Law (2018) by Marc D. Froese

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Protecting the Internally Displaced Rhetoric and Reality

Phil Orchard

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Phil Orchard The right of Phil Orchard to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Orchard, Phil, 1976- author. Title: Protecting the internally displaced : rhetoric and reality / Phil Orchard. Description: Abingdon, Oxon ; New York, NY : Routledge, 2019. | Series: Global institutions | Includes bibliographical references and index. Identifiers: LCCN 2018032427 (print) | LCCN 2018045321 (ebook) | ISBN 9781315756189 (eBook) | ISBN 9781138799226 (hardback) Subjects: LCSH: Internally displaced persons—Protection— International cooperation. | Office of the United Nations High Commissioner for Refugees. Classification: LCC HV640 (ebook) | LCC HV640 .O739 2019 (print) | DDC 362.87—dc23 LC record available at https://lccn.loc.gov/2018032427 ISBN: 978-1-138-79922-6 (hbk) ISBN: 978-1-315-75618-9 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

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To Victoria

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Contents

List of illustrations Acknowledgments List of abbreviations Introduction 1

xi xii xiv 1

Norm emergence and contestation within the IDP protection regime

21

2

Forced migrants, IDPs, and the role of international law

39

3

The origins of internal displacement

63

4

The emergence of assistance and protection norms toward IDPs

88

5

The United Nations’ institutional response

113

6

Implementing legal protections at the regional and domestic levels

135

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Implementation issues

168

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Failed implementation

193

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Contents

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9

When will reality meet rhetoric for the internally displaced?

223

Annex table: domestic IDP policies or legislation Select bibliography Index

234 244 245

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Illustrations

Figures I.1 Total Global Forced Migrants, 1970–2017 1.1 The International Humanitarian Regime Complex 1.2 Substantive Reference to IDPs in United Nations Resolutions, 1990–2014

2 30 31

Table Annex table: domestic IDP policies or legislation

234

Acknowledgments

My journey exploring issues of internal displacement began in 2001. I had just finished a master’s degree on humanitarian intervention and was offered an intern position through the UN Association of Canada in New York. At the time, I knew very little about IDPs beyond the fact they existed. They were an issue that was simply not covered in International Relations as a discipline. And yet, over the next year, I saw firsthand how large a problem responding to situations of internal displacement was, and just how much attention was being paid to it within the UN system as my roles changed from being a Research Assistant at the then Brookings Institution-City University of New York Project on Internal Displacement to being the Assistant to Francis Deng as Representative of UN Secretary-General for Internally Displaced Persons. To Francis, to Roberta Cohen, the then Co-Director of the Project, and to Erin Mooney, the Project’s Deputy Director, I owe a great debt of gratitude. While I began writing on internal displacement issues in 2010, this book’s path really began in 2015, when Tom Weiss encouraged me to submit it to the Global Institutions series. I was able to start work on it during a sabbatical at the University of Oxford’s Refugee Studies Center as a Visiting Fellow. I would like to thank in particular Alex Betts, Jeff Crisp, Cathryn Costello, Matthew Gibney, and Olaf Kleist for their time and help while I was there, and to Sarah Rhodes for guiding me through the Bodleian Library’s extensive grey literature on IDPs (to which I now understand the Brookings Project archives have been added). I would also like to thank my former colleagues at the University of Queensland for their help and suggestions, including Tim Dunne, Nicole George, Matt McDonald, Jacinta O’Hagan, Sarah Percy, Andrew Phillips, Chris Reus-Smit, Heather Rae, and Alistair Stark, as well as my colleagues at the Asia Pacific Center for the Responsibility to Protect, including Alex Bellamy, Arna Chancellor, Mark Love, Noel Morada, and Sarah Teitt. I would also like to thank Lisbeth Zimmermann and Nicole Deitelhoff for inviting me to

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present an early form of the theoretical framework to their 2016 ISA workshop, and to thank Beth Simmons in particular for her comments. Thanks are also due to Elizabeth Ferris, Adrian Gallagher, Jane McAdam, David Malet, James Milner, and Jason Ralph for opportunities to present this work as it developed and for their helpful encouragement. And I would also like to thank Miriam Anderson, Susan Banki, Sara Davies, Luke Glanville, and Tom Pegram for being willing to discuss aspects of the project. Special thanks are due to Vickie Frater and Rebekkah Markey-Towler for their research assistance. I would also like to thank several of my current and past PhD students who also helped me to think through some of these issues, including Vickie Frater (again), Philip Alesin, Charlie Hunt, Jess Gifkins, and Rebecca Shaw. Finally, thanks are also due to my family: to Charlotte and Kate for putting up with daddy finishing another book and to Victoria Colvin for supporting me with this as in all things. To her it is dedicated. Wollongong, NSW 8 June 2018 A previous version of Chapter 4 was published as Phil Orchard, “The Contested Origins of Internal Displacement,” International Journal of Refugee Law 28, no. 2 (2016).

Abbreviations

AALCO AAP AU BiH CAR CHR CIREFCA CMR CNR CNRS DP DRC ECHO ECOSOC ECOWAS ELN ExCom EU FARC FRUS HRC HRW IACHR IASC ICG ICRC IDMC IDP

Asian–African Legal Consultative Organization Accountability to Affected Populations African Union Bosnia and Herzegovina Government Central African Republic United Nations Commission on Human Rights International Conference on Central American Refugees Crude Mortality Rates Comité National pour les Refugiés (DRC) Committee for the Protection of Displaced Persons (Burundi) Displaced Person Democratic Republic of Congo European Civil Protection and Humanitarian Aid Operations United Nations Economic and Social Council Economic Community of West African States Ejército de Liberación Nacional UNHCR Executive Committee European Union Fuerzas Armadas Revolucionarias de Colombia Foreign Relations of the United States United Nations Human Rights Council Human Rights Watch Inter-American Commission on Human Rights United Nations Inter-Agency Standing Committee International Crisis Group International Committee of the Red Cross Internal Displacement Monitoring Center Internally Displaced Person

xv IFRC IGCR IO IOM IR IRO LNA LNTS LRA LTTE MDC MINURCAT MINUSCA MINUSTAH MONUS MoRR MSF NCCC NGO NRC OAU OAS OCHA OHCHR OSCE PAR PKK RSG R2P SHAEF SPLA SRSG UN UN GAOR UNAMID

Abbreviations

xv

International Federation of Red Cross and Red Crescent Societies Intergovernmental Committee on Refugees International Organization International Organization for Migration International Relations International Refugee Organization League of Nations Archives, Geneva League of Nations Treaty Series Lord’s Resistance Army (Uganda) Liberation Tigers of Tamil Eelam (Sri Lanka) Movement for Democratic Change (Zimbabwe) UN Mission in the Central African Republic and Chad United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic UN Stabilization Mission in Haiti UN Mission in Congo Ministry of Refugees and Repatriation (Afghanistan) Médecins Sans Frontières National Consultative Coordination Committee (Kenya) Non-governmental Organization Norwegian Refugee Council Organizations for African Unity Organization of American States United Nations Office for the Coordination of Humanitarian Assistance United Nations Office of the High Commissioner for Human Rights Organization for Security and Cooperation in Europe Program for the Support of Resettlement (Peru) Kurdish Workers’ Party (Turkey) Representative of the United Nations Secretary-General on Internally Displaced Persons Responsibility to Protect Supreme Headquarters Allied Expeditionary Force Sudan People’s Liberation Army United Nations Special Representative of the SecretaryGeneral United Nations United Nations General Assembly Official Records UN Assistance Mission in Darfur

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Abbreviations

UNAMIR UNDP UNGA UNHCR UNICEF UNMISS UNOSOM II UNPROFOR UNRRA UNRWA UNSC US WFP WHO ZANU–PF

xvi

UN Assistance Mission in Rwanda United Nations Development Program United Nations General Assembly United Nations High Commissioner for Refugees United Nations Children’s Fund UN Mission in South Sudan United Nations Operation in Somalia II United Nations Protection Force United Nations Relief and Rehabilitation Administration United Nations Relief and Works Agency United Nations Security Council United States World Food Program World Health Organization Zimbabwe African National Union–Patriotic Front

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Introduction

• •

Why should we care about IDPs? Structure of the book

Flight is an old phenomenon. We can see references to it in Ancient Egyptian peace treaties and in the holy manuscripts of almost every major religion. Until 25 years ago, however, flight from conflict was pictured as an exclusively external phenomenon; as refugees fleeing political persecution, human rights violations, and atrocities in their homelands to seek asylum and sanctuary elsewhere, and to have their rights protected by international law because their state of citizenship or residence had failed to do so. And yet, alongside refugees, we had another group: those who had similarly fled their homes but who remained within their own state. These were— and are—the internally displaced, who today number over 40 million globally.1 They are a group that, since the time adequate global records began to be constructed, have consistently outnumbered by a factor of two the world’s refugees (see Figure I.1). We can easily identify internally displaced persons (IDPs) as far back as the Second World War. As a phenomenon, it is likely much older if unheralded. From the Second World War onward, the category of internally displaced persons appears in fit and starts, used to differentiate those who are displaced within their own countries from other categories, categories that were easier to understand and more readily legible at the international level. Thus, the Allied United Nations Relief and Rehabilitation Administration (UNRRA) first used “internally displaced persons” as a shorthand to separate those who were displaced within their own countries from the larger category of “displaced persons” which referred to the vast numbers of people displaced by the war but who were willing to return to their homes. And yet, by the time of the negotiations around the 1951 Refugee Convention, Eleanor Roosevelt, representing the United States, was able to block the inclusion of “internal refugees” within the Convention by

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Introduction

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70000000 60000000 50000000 40000000 30000000 20000000 10000000

1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

0

UNHCR-Mandated Refugees Total Refugees

UNRWA-Mandated Refugees IDPs

Figure I.1 Total Global Forced Migrants, 1970–2017 Sources: UNHCR data: www.unhcr.org/statistics/ (figures since 2007 include people in refugeelike situations and are not directly comparable); UNRWA data: Report of the CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, A/35/13, 30 June 1980, and Annually 1982–2007. Reports available at the UN Information System on the Question of Palestine: www.unispal.un.org. Data for 1981 are missing, and have been extrapolated from 1980 data based on annual growth rate of 2.2 percent. See BADIL Annual Growth Rate of Registered Palestinian Refugees (1953–2000), www.badil.org/Statistics/ population/Statistics.htm. 2007 onward from UNRWA Statistics website: www.unrwa.org/ etemplate.php?id=253; IDP Data: United States Committee for Refugees, World Refugee Survey [Yearly 1997–2004], Washington DC, US Committee for Refugees; Internal Displacement Monitoring Center, Internal Displacement: Global Overview of Trends and Developments, [Yearly 2004–2017], Geneva, Norwegian Refugee Council, 2005–2018; Norwegian Refugee Survey, Internally Displaced Persons: A Global Survey, London, Earthscan Publications, 1999, 28. See also (Orchard 2014c: 204).

arguing that they represented “separate problems of a different character” from that of refugees, “in which no question of protection of the persons concerned was involved.”2 The category reappears in the 1970s, as the UN General Assembly and the Secretary-General began to call on the United Nations High Commissioner for Refugees (UNHCR) to assist specific groups outside of its Statute, groups that were referred to as “displaced persons” but who, in practice, were often displaced within their own countries.3 And yet, for UNHCR, the term “displaced persons” remained a useful catch-all to refer to those people who did not fall within the Refugee Convention.4 Even so,

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Introduction

3

UNHCR as an international organization recognized the need to provide IDPs with international assistance, even if in a limited form. This is important, because through these practices, UNHCR began to create a shared understanding at the international level held by it, by other UN agencies, by international NGOs including the International Committee for the Red Cross, and by states, that IDPs should receive international assistance; in other words, through these practices, UNHCR began to create a new international norm around IDP assistance. But this norm was a limited one. At a fundamental level, while IDPs may flee for many of the same reasons as refugees—from human rights abuses, from persecution, from conflict and generalized violence, and from mass atrocities—because they remain within their own state, state sovereignty has been a critical issue tempering the international response.5 The principle of sovereignty served as a check on the ability of international actors— including the United Nations and other international organizations, regional, and sub-regional organizations, and non-governmental organizations—as well as other states to provide IDPs with protection and assistance. Until 1992, there was no consensus that IDPs represented an “international” problem at all. As citizens, the internally displaced should have all the rights of the other members of their political communities, and their own states are expected to be the first line of protection and assistance. But, too often, the act of displacement puts IDPs into a separate category, one where it is difficult to access these rights, where the state may be unable or unwilling to help them and, at the extreme, where it is their own state that is displacing them. Thus, while refugees receive a legal status to replace that of the country they fled, IDPs suffer from an ad hoc set of national and international legal and institutional measures designed to offer them protection but which too often fail in this pledge. Because of this, IDPs frequently find themselves in worse conditions than other groups, being deprived not only of their rights, but also of basic necessities including food, shelter, and the right to health.6 Even the term “internally displaced person” reflects a bureaucratic and temporalizing form of response. We know who refugees are and the term has been in use for over 300 years. The term “IDP,” by contrast, reflects the “soulless shorthand of bureaucracy” per UNHCR.7 Richard Holbrooke, then the US Ambassador to the United Nations, referred to it as “odious terminology” in need of abolition. Thomas Weiss and David Korn note that “‘internally displaced persons’ is an awkward mouthful, and ‘IDP’ lack pizzazz . . . ‘Internally displaced persons’ is too many words, too clinical, too antiseptic.”8 And the term itself obfuscates two distinct issues: the actual problem of internal displacement, and the need for an international response.

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Introduction

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In spite of this, not only has the actual problem of internal displacement now been recognized, but so too has the need for an international response that goes beyond the limited assistance activities of UNHCR in the 1970s and 1980s. The shift began with a series of international conferences in the late 1980s which placed the issue on the UN agenda. Then, following the Gulf War and a failed uprising by Iraqi Kurds, for the first time the issue was raised front and center in the international media. In 1992, the UN responded by appointing a Representative of the Secretary-General (RSG) on Internally Displaced Persons, Francis Deng, who would serve in the role for 12 years. Among Deng’s accomplishments was, in 1998, the UN’s creation of a set of Guiding Principles on Internal Displacement. While not legally binding, these principles have created a factual definition of internally displaced persons as: 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.9 And the international community has made a range of commitments to address the problem of internal displacement. The 2015 Sustainable Development Goals not only recognize forced displacement as threat to reverse development progress, but also noted that internally displaced persons are a specific group who are vulnerable and must be empowered. Thus, within the Goals, the international community committed to “take further effective measures and actions, in conformity with international law, to remove obstacles and constraints, strengthen support and meet the special needs of people living in areas affected by complex humanitarian emergencies and in areas affected by terrorism.”10 In 2016, the Secretary-General’s Agenda for Humanity, the framework for the World Humanitarian Summit, identified reducing and addressing displacement as a core responsibility. This commitment includes reducing “forced internal displacement by 2030. Commit to a comprehensive global plan to reduce internal displacement in a dignified and safe manner by at least 50 per cent.”11 And yet, these steps to help IDPs to appear now have been overshadowed by the growth of refugees and other migrants. The New York Declaration for Refugees and Migrants passed by the General Assembly in September 2016 had only one substantive reference to IDPs and that was simply, “We note the need for reflection on effective strategies to ensure adequate protection and assistance for internally displaced persons

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5

and to prevent and reduce such displacement [as refugee or migrants].” In other words, in that Declaration, the General Assembly focused on IDP protection and assistance only as a means to reduce the likelihood of them becoming refugees or migrants. This reduction of focus is also reflected in the United Nations’ Global Compact on Refugees. While still under negotiation at the time of publication, the draft text only mentioned IDPs as a group alongside returnee refugees who would need support to avoid further displacement.13 Similar issues have bedeviled the mandates within the United Nations system with respect to internal displacement. Francis Deng was appointed in 1992 as a Representative of the Secretary-General for Internally Displaced Persons, a unique categorization reflecting the fact he reported both to the then Commission on Human Rights and to the General Assembly. His successor in 2004, Walter Kälin, was given the narrower title of Representative of the Secretary-General for the Human Rights of Internally Displaced Persons. Kälin’s successor in 2010, Chaloka Beyani, saw his title further narrowed to Special Rapporteur on the Human Rights of Internally Displaced Persons, a title held also by his successor, Cecilia JimenezDamary, who was appointed in 2016. Perhaps aware of the incongruity of these shifts, even the official Office of the High Commissioner for Human Rights website for the Special Rapporteur notes that “while the title of the mandate holder changed, the functions of the mandate-holder and the mandate itself have remained essentially the same.”14 Even how the UN provides assistance and protection to IDPs has varied significantly. No lead agency exists; instead, the UN has used a variety of collaborative systems including, since 2005, the Cluster Approach. But this has meant that issues first raised when IDPs were recognized as an international problem persist some 25 years later. Thus, Elizabeth Ferris, the former co-director of the Brookings-LSE Project on Internal Displacement, notes that “IDPs are less visible than they were a decade ago.” She quotes an interviewee who stated that “a decade ago IDPs were the new game in town. Today they’ve been mainstreamed into oblivion.”15 This is seen even in the research capacity that NGOs and universities assign to IDP issues. Only one NGO—the Internal Displacement Monitoring Center—exists which is dedicated to IDP issues, and its primary role is providing data and information to the UN and governments.16 Over a dozen university-based research centers exist which examine refugee issues and law or forced migration. Following the closure of the Brookings-LSE Center on Internal Displacement in 2015, however, there is no center dedicated to IDP research globally. The question, therefore, can be asked: how deeply internalized are international norms associated with the assistance and protection of internally displaced persons at the international, regional, and domestic levels?

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Introduction

6

Earlier, I suggested that there are two clear norms associated with IDPs—an assistance norm which first began developing in the 1970s, and a protection norm, which really emerged with the Guiding Principles on Internal Displacement in 1998. In fact, the Guiding Principles did more than just introduce a norm—I argue that it has also helped to introduce a new international protection regime for IDPs. This argument is the focus of Chapters 2 and 3, but to briefly summarize it here, international norms are shared understandings of appropriate behavior for actors with a given identity which isolates a single strand of behavior.17 They represent rules accepted by states and other actors which both constrain and help to constitute their behavior at the international level. But norms are also international structures, aspects of social life which are not directly observable but which nonetheless exist.18 Norms isolate specific behaviors; international regimes are structures composed of bundles of different norms which serve as a behavior guide for states and other international actors to understand how different norms should be understood and interpreted together.19 The Guiding Principles have served to introduce three norms with respect to international practice toward the internally displaced. The first norm is enshrined in that IDP definition. The definition constitutes the subject group of this regime, namely anyone who has fled armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters and who has not crossed an international border. This definition, it is important to note, is universal and is not a closed definition limited to the specified events.20 In this sense, this definitional norm recognizes IDPs as a distinct group which faces dilemmas only resolvable through international action. Thus, while a number of different IDP definitions were used prior to 1998, following the Guiding Principles, international practice has crystallized around that definition, to the point that it is routinely reference as the definition of internal displacement by General Assembly and other UN bodies.21 The second norm that the Guiding Principles establish is that IDPs are entitled to the same legal protections as other citizens within their own countries.22 The Principles, Kälin notes, are critical in making this link as IDPs: “are faced with the fact that no specific international convention exists for the protection of their rights and that none of the innumerable provisions of international human rights, humanitarian, and refugee law treaties explicitly addresses their plight.”23 The third norm reinforces the need for assistance to IDPs and reflects the fact that there are a range of diffuse and direct responsibilities toward the internally displaced which accrue to both the individual state concerned and to the international community more broadly. The principles establish

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Introduction

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(in principle three) that “national authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction” and (in principle 25) that “the primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities.” And yet, the international community has an important role as well, as “appropriate actors have the right to offer their services . . . Consent thereto shall not be arbitrarily withheld.”24 This norm reflects UN practice toward humanitarian assistance, and particular General Assembly Resolution 46/ 182,25 which established that all humanitarian efforts “must be provided in accordance with the principles of humanity, neutrality, and impartiality.” However, the resolution introduced a significant limitation: that assistance “be provided with the consent of the affected country . . . the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory.” At the same time, I argue that these individual norms reflect an informal IDP protection regime. As a regime, the IDP protection regime looks significantly different from other established regimes. The international refugee regime, for example, is anchored in both a clear international convention—the 1951 Convention on the Status of Refugees and its 1967 Protocol—and the actions of an established international organization, the United Nations High Commissioner for Refugees (UNHCR). Protection of war-affected civilians is similarly anchored in the Geneva Conventions and in the activities of the International Committee of the Red Cross (ICRC). Both of these regimes offer clear legal protections to their subjects, as well as having an established mandate to also provide assistance. By contrast, while the IDP regime has been institutionalized at the international level, it is not anchored in binding international law.26 And yet, the Guiding Principles as the basis for the regime have been widely recognized. Within the United Nations, Secretary-General Kofi Annan argued in 2005 that they should be accepted as “the basic international norm for protection” of IDPs27 while the 2005 World Summit Outcome Document recognized the Principles as “an important international framework” for IDP protection.28 The General Assembly, the Security Council, and the Commission on Human Rights/Human Rights Council have all acknowledged or recognized the Principles.29 Regional and sub-regional organizations have also recognized the Guiding Principles and have disseminated and made use of them.30 And, in an important boost, the Principles have entered into regional hard law. In 2006, a Protocol on Protection and Assistance to Internally Displaced Persons was adopted by the 11 member states of the African International Conference on the Great Lakes Region, which obliges those states to accept the Principles and incorporate them into

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domestic law. In October 2009, the African Union Special Summit of Heads of State adopted the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention), which came into force in 2012.32 And yet, by being anchored primarily in a legally non-binding soft law framework, the efforts by international actors to provide assistance and protection to IDPs have been both complex and frequently ad hoc. This is not because IDPs lack core legal rights. As Walter Kälin, the former Representative of the Secretary-General for the Human Rights of Internally Displaced Persons, has argued: “It is possible to cite a multitude of legal provisions for almost every principle.”33 Nonetheless, because the Guiding Principles are soft law, the IDP protection regime is an informal one. The concept that international regimes can be either formal or informal has long existed within the International Relations literature. Stephen Krasner defined regimes as “implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.”34 That “implicit” element led to a range of literature exploring the notion of informal regimes, ones, as Puchala and Hopkins suggest, could be created and maintained “by convergence or consensus in objectives among participants” enforced through mutual self-interest, monitoring, and informal agreements.35 More recently, Goertz has proposed that regimes should instead be viewed more simply structures of norms and rules, with norms and rules being counterparts for most purposes.36 Equivalently, regimes can be viewed as having “just two core elements: norms and international organizations,” a view that Krasner himself has indicated support for.37 Such a shift views a regime as a social institution, one in which states and other actors gradually alter their normative expectations and which causes a regime—whether formal or informal—“to represent a pattern of behavior that legitimate states ought to follow.”38 While informal regimes can clearly exist, the IDP protection regime shows the potential consequences of informal regimes in three ways. First, norms within these regimes have less precision and increased ambiguity. States and other international actors may well follow the norms, but due to these issues, their own domestic and intra-organizational efforts to implement the norms will see wider variance in interpretation of what obligations the norms create and what their particular responsibilities and duties are under the norm. Second, this variance means that the individual norms, even though they are embodied within a regime, lack the same normative resonance more clearly articulated norms would have. This is a critical issue because the growing complexity of global governance means that new regimes—like that of IDP protection—emerge into a crowded space, one in which myriad linkages between other norms and regimes as well as

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between a constellation of different actors quickly emerge. I identify these effects by examining the range of domestic laws and policies passed by states to protect and assist their own populations; while a significant number have been passed, they rarely refer to the Guiding Principles directly or use its definition. Third, because informal regimes do not necessarily have a single international organization with a clear mandate responsible for the issue, such regimes will be significantly affected by issues related to regime complexity. Regime complexity is defined as referring to the “presence of nested, partially over-lapping, and parallel international regimes that are not hierarchically ordered.”39 In particular, many of the international organizations involved in the IDP protection regime (most notably, UNHCR) see their mandates divided between several issues. But this also means that no single IO has a final responsibility for them. This could be different. In the 1990s, proposals were made to either create a new IO for IDPs or to assign responsibility for them to UNHCR. These efforts, as discussed in Chapter 5, failed. Instead, the response has been to create an ad hoc system of international legal and institutional protections, designed to be provided with a range of actors within the state. In 2005, the cluster approach was introduced in an effort “to provide much-needed predictability and accountability for the collaborative response to IDPs.”40 Each of the clusters consists of “a group comprising organizations and other stakeholders” with a designated lead agency, “working in an area of humanitarian response in which gaps in response have been identified.”41 UNHCR has a key role in cluster approach, as the global lead for protection in conflict situations, shelter, and camp management,42 and this led to suggestions at the time that UNHCR was becoming “a de facto lead agency for assisting and protecting IDPs.”43 However, the cluster approach covers a range of humanitarian situations, not just IDPs. And, in taking on this role, UNHCR was careful to position its role against its core mandate of refugee protection. It noted particular concerns that its involvement in more internal displacement situations “could be seized upon to ground measures on a national, bilateral or regional basis to keep internally displaced or other persons otherwise seeking asylum in neighboring countries strictly within national borders.”44 The result of this is that UNHCR is only one of the plethora of actors providing IDPs with protection and assistance.

Why should we care about IDPs? My focus is not on the entirety of the IDP cycle. IDPs do need to have their situations addressed at all stages of displacement, including through actions to prevent displacement, through the actual period of displacement, and

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then to ensure that they receive durable solutions. Rather, my focus here is on how states and the international community can best seek to protect and provide assistance to IDPs during their period of displacement, and particularly during the emergency phase—the period immediately after their initial flight. For IDPs—as opposed to other groups—this emergency phase may prove to be long lasting. And, as I argue ahead, this is one of the core reasons why IDP protection should and needs to remain a specific issue of international concern. At the same time, though, this informality has meant an ongoing challenge to the international response to IDPs, reflected in basic arguments around whether they actually need distinct recognition. When the Guiding Principles on Internal Displacement were first proposed, the ICRC objected on two points. The first was that humanitarian law did “afford protection to the internally displaced” but that “its scope extends a great deal further,”45 though this neglects the fact that many IDP situations occur in situations outside conflicts where international humanitarian law is not applicable. The second point was that while concern for IDPs was crucial, “there are obviously other categories of people whose needs may be just as pressing and just as acute.” Consequently, they argued that an impartial response needed to prevent “unjustified distinction between the various categories of victims.”46 However, the ICRC’s position has since shifted, with the organization having acknowledged the Principles “are a very useful and important tool.”47 In fact, there are three reasons why IDPs should be treated as a distinct category. The first is that while national authorities bear the primary duty and responsibility to provide protection and humanitarian assistance to IDPs within their jurisdiction, this is a responsibility that frequently remains unfulfilled. States have barred access to IDP populations on sovereignty grounds, or even simply deny that they have IDPs at all. At the extreme, governments may deliberately displace their own populations through ethnic cleansing or other forms of atrocity crimes. In the case of Darfur, the Sudanese government’s “bureaucratic constraints on humanitarian space and access” has been “a constant feature of the humanitarian landscape since 2003 and remain ubiquitous.”48 We see this as well in the Syrian Arab Republic’s 2013 position that it was not suffering from a phenomenon called “internally displaced persons” but rather had been subject to a series of terrorist attacks undertaken by armed outlaws. As such, persons being assisted were referred to as “people who left their homes as a result of the current events.”49 Even when national authorities request assistance from the international community, access to specific IDP groups may be blocked by difficult

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terrain, by a lack of resources, by danger from lawlessness of from armed opposition, or by inabilities on the part of the governmental bureaucracy to agree on a coordinated response. The second reason why IDPs should be a distinct category is that they continue to face significant trauma not only in the process of flight, but also even in camp situations long after. The traumatic experiences leading up to the process of flight, and flight itself, may have left IDPs suffering from post-traumatic stress disorder and other forms of psychosocial distress.50 The process of flight may have broken important family and community ties, and IDPs may have lost access to livelihoods, education, and health care.51 They may also lack identification and access to services. IDPs may also be fearful of the state apparatus and may not want to engage in government-based registration activities. Because they are displaced, IDPs face higher risks of becoming victims of gender-based violence and, particularly for children, forcible recruitment.52 Those who have been directly targeted by violence are significantly less willing to return to their homes.53 Further, shelter is a particular issue for IDPs. As Mooney notes, “providing IDPs with emergency shelter persistently proves to be among the poorest addressed and most neglected aspects of humanitarian response.”54 At least half of the countries with current IDPs situations have few or no formal camps. Instead, IDPs may live with host families, or in private or makeshift lodging.55 Even in camps, because of more limited access and assistance, IDPs tend to suffer in worse circumstances than refugees. To draw here on epidemiological studies, crude mortality rates, or CMRs, are frequently used as a measure to indicate emergency situations. CMRs estimate mortality rates among populations as a measure of the mortality rate among 10,000 people per day. Baseline measures are generally fixed at 0.5 per 10,000 per day by a range of actors and a rate above 1 is viewed either as an “emergency” or as “very serious.” Not surprisingly, displacement situations significantly increase mortality rates. One 2002 study found that in complex emergencies, “mortality rates in displaced people are at least double predisplacement baseline levels,” with most deaths being caused by “preventable and treatable infections, often exacerbated by malnutrition, caused mainly by diarrheal disease, respiratory tract infections, measles, and malaria.”56 Humanitarian responses can rapidly reverse this pattern, and generally, it is expected that CMRs will return to normal four to six months after an effective humanitarian response.57 In the early 1990s, CMRs were high in both refugee and IDP populations. A number of refugee situations, including in Ethiopia, Kenya, Malawi, Nepal, and Zimbabwe, had CMRs of between five and 12 times (3.5–22) the baseline.58 Specific IDP situations had even higher CMRs,

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including 2.6 among Iraqis in March–May 1991 to much higher figures of up to 23 among displaced Sudanese in 1992–1993, and up to 50.7 among displaced Somalis in Baidoa in 1992.59 Refugee situations usually stabilized once humanitarian assistance was delivered. One study found that between 1995 and 2004, the mortality rate in camps had “rarely been more than double the emergency threshold” and that “in long-established refugee camps, mortality rates are systematically lower for refugees than for the surrounding host population.”60 For IDPs, CMRs remain high during emergencies and, on average, are higher than comparable refugee rates.61 In Darfur, Sudan, for example, separate studies found that CMRs were above emergency levels both for the population as a whole and in IDP camps, with figures stabilizing only in December 2004, over a year after emergency assistance began.62 But high levels persist even in camps where assistance is being provided. Studies in Chad and Uganda both found that CMRs remained at the emergency level in IDP camps over a year after assistance had begun.63 Protracted IDP situations are also commonplace. UNHCR has defined protracted refugee situations by the “crude measure of refugee populations of 25,000 persons or more who have been in exile for five or more years in developing countries.”64 Significant problems exist with respect to this data on refugees,65 and our knowledge of protracted IDP situations is even worse. One study in 2008 identified 42 situations, the majority of which were cases where conflicts had become frozen.66 Finally, the third reason why IDPs should be viewed as a distinct category is because responding to IDPs has required a shift in contemporary understandings of sovereignty. Francis Deng, the first Representative of the UN Secretary-General for Internally Displaced Persons, coined the term “sovereignty as responsibility” to justify international action to help the internally displaced. He argued that in order for a government to be legitimate, it must also provide its population with a certain level of protection. Most governments do so, and if unable, they call upon the international community to assist. However, he went on to note: Under exceptional circumstances when governments fail to discharge this responsibility and masses of their citizens become threatened with severe suffering and death, the international community should step in to provide the needed protection and assistance, even if the government of a state has not requested aid.67 But this raises the distinct question of how the international community should protect IDPs. This is a critical issue, as protection for IDPs, like protection for refugees and for civilians, is based in a doctrine of legal

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protection. And yet, protection has no clear legal meaning. The UN’s Inter-Agency Standing Committee (IASC) has defined IDP protection as “encompass[ing] all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law” including international human rights, international humanitarian law, and refugee law.69 However, the IASC definition for IDP protection listed here simply duplicates the ICRC’s own definition of civilian protection, which they note encompasses “all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law (i.e., human rights, humanitarian law and refugee law).”70 In the IASC’s view, this definition was “comprehensive in scope, both in terms of the legal framework for protection, (‘full respect’), and in terms of the strategies and methods by which protection may be achieved (‘all activities’).”71 UNHCR uses a similar definition to define refugee protection.72 Hence, all three forms of protection are equated with a legal responsibility:73 international protection must be linked to the fulfillment of international obligations. And by defining protection through law, it presumes that all responsible parties (including states, non-state actors, and international actors including peacekeeping operations) need to uphold these legal principles.74 But international protection must also, as Guy GoodwinGill has argued, have “a practical aspect—it means being there and using all available mechanisms to ensure that protection goals are achieved (municipal law, governmental and non-governmental institutions, the impact of information, regional and international supervisory mechanisms; protest).”75 These understandings of protection can also focus more on seeking to promote international human rights law rather than directly protecting civilians or IDPs through measures such as the use of peacekeepers. A range of humanitarian actors provide civilians not only with assistance but, increasingly, also with protection through their presence, programing, and advocacy.76 But responding to IDPs situations in conflicts is inherently more problematic than other forms of response. These organizations may have little capacity to actually protect them, lacking the “political authority, the military force, and the legal mandate that would give them the practical power to protect civilians effectively.”77 Thus, whereas international law must always underpin protection, in many instances for internally displaced persons, this will be an indirect form of protection. This protection needs to be tempered by IDP’s own actions, by those of their state and by non-state actors, and by those of the international community in both assisting the state but also in its willingness to play a role when the state is unable or unwilling.

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Structure of the book This book tells three stories. The first explores how the issue of IDP assistance and protection became an international, rather than solely domestic, problem through the lens of International Relations (IR) theory, and particularly an IR Constructivist approach. The second story is a history of internal displacement as an idea. The third story is how we are responding to the problem of internal displacement today at the state, regional, and international levels. The next chapter lays out the theoretical framework of the book. It argues that new international norms, shared understandings held by actors with a given identity, have been constructed around the IDP issue, and that these norms today make a nascent international regime. This IDP protection regime, however, is nested within not only a broader international humanitarian regime complex and international humanitarian and human rights law, but also a set of parallel regimes around issues including refugee protection, humanitarian assistance, peacekeeping, and the Responsibility to Protect. Many of these other regimes emerged either prior to or alongside the IDP regime, which has led to a series of critical overlaps between these different regimes; overlaps which have frequently seen the IDP issue marginalized at the international level. The foundation of this IDP regime is law, particularly the Guiding Principles on Internal Displacement. Therefore, Chapter 2 focuses on the role of international law in understanding not only IDP protection but also wider protections for refugees and forced migrants. It explores the Principles in detail, and also reflects on how they have been brought into regional law through the Great Lakes Protocol and the African Union’s Kampala Convention. In order to flesh out these theoretical concepts, the book then provides a history of internal displacement as an idea at the international level. Chapter 3 begins by exploring the fluidity of the refugee concept in the early twentieth century and argues that internal displacement was not yet a clearly distinct form of displacement during that period. IDPs could well have been recognized and included within the 1951 Refugee Convention, driven by a series of “internal refugee” problems in the late 1940s including in Greece and with the Indian partition. They were not included, however, due to concerns held particularly by the government of the United States that this would require the nascent United Nations High Commissioner for Refugees to have an assistance mandate in addition to a pure legal mandate. With that decision, the issue of internal displacement at the international level disappeared for two decades. Chapter 4 examines how the IDP issue reemerged in the 1970s, driven by the need for international assistance to be provided to them. The form this

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took was to establish a practice by which UNHCR would provide the assistance outside of its core mandate when asked to do so by the UN SecretaryGeneral or the UN’s General Assembly. Importantly over the decade, this became an almost de facto practice, and appears to have become a norm that international assistance could be provided to IDPs with the consent of the state concerned. It then examines how, in the 1990s, IDP assistance and protection became linked together and how, for the first time, the United Nations took formal action to respond to the IDP issue. Chapter 5 then focuses on the United Nations’ institutional response to IDPs. No formal IO for IDPs exists; instead, this chapter examines how since the 1990s, the UN system has evolved policy norms in order to address IDP assistance and protection. On the humanitarian side, this has seen three separate attempts to coordinate assistance, culminating in the 2005 cluster approach. But this has also seen IDP issues brought into the peacekeeping-based Protection of Civilians Agenda and, to a degree, into efforts to implement the Responsibility to Protect doctrine. Each of these efforts is important but, as this chapter argues, each remains problematic. The final section of the book then examines the other side of the response: how a range of states have introduced laws and policies to respond to their own internal displacement situations. These domestic laws and policies are held up by the international community as clear evidence of commitment. And yet, as I explore these laws and policies across some 40 states, we can see wide variance in both how they reflect the Guiding Principles but also how effectively they are being implemented. Chapter 6 examines states where these laws and policies have generally been successfully implemented. Successful implementation, the chapter argues, is generally due to a mix of robust state capacity, leadership, and commitment. But it is also due to clear accountability mechanisms to the domestic courts, the population, and to the international community. Chapter 7 then focuses on states where the implementation process has run into issues. This reflects two widespread issues. The first is problems with the laws and policies themselves, which are frequently narrow either in definition or scope. The second is that states lack the capacity to implement them due to a renewal of conflict or other limitations. Chapter 8, finally, focuses on states where implementation has been either very problematic or has stalled entirely. In some of these cases, the laws and policies reflect little more than rhetorical commitments by states which they never planned to implement. In other cases, states made genuine commitments, but implementation stalls due to inadequate institutional support within government or domestic opposition at the state or local levels. Chapter 9 concludes the book by arguing that the IDP protection regime remains incomplete, with rhetoric more advanced than the international reality. But I argue that these are issues which can be addressed through

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improved accountability, monitoring, and enforcement mechanisms, and by treating IDP assistance and protection as an international human rights issue.

Notes 1 Internal Displacement Monitoring Centre (IDMC), Global Report on Internal Displacement 2018 (Geneva: Internal Displacement Monitoring Centre, 2018), v. 2 Mrs. Roosevelt (United States), “UN General Assembly Official Records (UN GAOR) (document A/PV.264)” (264th Meeting, 2 Dec. 1949), 473. 3 Refugees receive legal protections from the 1951 Refugee Convention and from an international organization, UNHCR, whose Statute establishes that it “shall assume the function of providing international protection, under the auspices of the United Nations to refugees . . .” United Nations General Assembly (UNGA) Resolution 428(V), 14 Dec. 1950, “Annex: Statute of the Office of the United Nations High Commissioner for Refugees,” 6. 4 David Hull, “Displaced Persons: The New Refugees,” Georgia Journal of International and Comparative Law 13, no. 3 (1983): 756. 5 Roberta Cohen and Francis M. Deng, Masses in Flight: The Global Crisis of Internal Displacement (Washington, DC: Brookings Institution Press, 1998), 275. A number of quantitatively based studies have confirmed that both groups flee from similar drivers: Susanne Schmeidl, “Exploring the Causes of Forced Migration: A Pooled Time-Series Analysis, 1971–1990,” Social Science Quarterly 78, no. 2 (1997); Christian A. Davenport, Will H. Moore, and Steven C. Poe, “Sometimes You Just Have to Leave: Domestic Threats and Forced Migration, 1964–1989,” International Interactions no. 29 (2003); Will H. Moore and Stephen M. Shellman, “Refugee or Internally Displaced Person? To Where Should One Flee?,” Comparative Political Studies 39, no. 5 (2006); Will H. Moore and Stephen M. Shellman, “Whither Will They Go? A Global Study of Refugees’ Destinations, 1965–1995,” International Studies Quarterly 51, no. 4 (2007). 6 Erin Mooney, “The Concept of Internal Displacment and the Case for Internally Displaced Persons as a Category of Concern,” Refugee Survey Quarterly 24, no. 3 (2005): 14–16; Lindsey N. Kingston and Christopher P. Morley, “Immigrants and Displaced Persons,” in Handbook of Global Bioethics, ed. Henk A. M. J. ten Have and Bert Gordijn (Dordrecht: Springer, 2014), 719–20. 7 UNHCR, Internally Displaced Persons: Questions and Answers (Geneva: UNHCR), Sept. 2007, www.unhcr.org/en-au/about-us/background/405ef8c64/ internally-displaced-people-questions-amp-answers.html, 4. 8 Thomas G. Weiss and David A. Korn, Internal Displacement: Conceptualization and Its Consequences (Oxford: Routledge, 2006), 14–15. 9 Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement (New York: UNOCHA, 1999), 1. 10 United Nations General Assembly, “Transforming Our World: The 2030 Agenda for Sustainable Development,” A/RES/70/1, 21 Oct. 2015, 6–7. 11 United Nations, Agenda for Humanity: Annex to the Report of the SecretaryGeneral for the World Humanitarian Summit (New York: United Nations, 2016), 7.

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12 UN General Assembly (UNGA), “Resolution 71/1,” A/RES/71/1, 3 Oct. 2016, 4. 13 United Nations, “Global compact on refugees, [Advance Version],” 20 July 2018, para. 89. 14 See “Introduction to the Mandate of the Special Rapporteur on the Human Rights of Internally Displaced Persons (IDPs),” www.ohchr.org/EN/Issues/IDPersons/ Pages/Mandate.aspx. 15 Elizabeth Ferris, “Guest blogger Elizabeth Ferris Describes ‘the Dangers of Mainstreaming IDPs into Oblivion’,” (IDMC), 29 Jan. 2015, www.internal-displace ment.org/library/expert-opinion/2015/guest-blogger-elizabeth-ferris-describes-thedangers-of-mainstreaming-idps-into-oblivion. 16 While it provided a range of training activities, this ceased in 2016. IDMC, “Training at IDMC,” www.internal-displacement.org/library/training/. The UN’s Global Protection Cluster is now the primary place for training on IDP issues, but by necessity focuses on humanitarian and protection issues. 17 Ronald Jepperson, Alexander Wendt, and Peter Katzenstein, “Norms, Identity and Culture in National Security,” in The Culture of National Security: Norms and Identities in World Politics, ed. Peter J. Katzenstein (New York: Columbia University Press, 1996), 52; Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52, no. 4 (1998): 891. 18 Colin Wight, Agents, Structures and International Relations: Politics as Ontology (Cambridge: Cambridge University Press, 2006), 122. 19 Phil Orchard, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press, 2014), 28–30; Gary Goertz, International Norms and Decisionmaking: A Punctuated Equilibrium Model (Lanham, MD: Rowman & Littlefield Publishers, 2003). 20 Katja Luopajarvi, “Is There an Obligation on States to Accept International Humanitarian Assistance to Internally Displaced Persons under International Law?,” International Journal of Refugee Law 15, no. 4 (2003): 678. 21 See, for example, UNGA Resolution 70/165, “Protection and Assistance to Internally Displaced Persons,” A/RES/70/165, 17 Dec. 2015, which uses the Guiding Principles’ definition in its first preambular clause. 22 Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement; Walter Kälin, Guiding Principles on Internal Displacement: Annotations, 2nd ed. (Washington, DC: The American Society of International Law, 2008). 23 Walter Kälin, “The Guiding Principles on Internal Displacement as International Minimum Standard and Protection Tool,” Refugee Survey Quarterly 24, no. 3 (2005): 28. 24 Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement, 13. 25 UNGA, “Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations,” A/RES/46/182, 19 Dec. 1991, Annex I. 26 Phil Orchard, “Implementing a Global Internally Displaced Persons Protection Regime,” in Implementation and World Politics: How International Norms Change Practice, ed. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014). 27 United Nations, In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General (New York: United Nations, 2005), para 210.

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28 United Nations General Assembly, Resolution 60/1: World Summit Outcome (New York: United Nations, 2005), para 132. 29 Phil Orchard, “Protection of Internally Displaced Persons: Soft Law as a NormGenerating Mechanism,” Review of International Studies 36, no. 2 (2010): 294. 30 Mooney, “The Concept of Internal Displacment and the Case for Internally Displaced Persons as a Category of Concern,” 166. 31 International Conference on the Great Lakes Region, “Protocol on Protection and Assistance to Internally Displaced Persons,” Nairobi, 30 Nov 2006, http://www. refworld.org/pdfid/52384fe44.pdf; see also Chaloka Beyani, “Recent Developments: The Elaboration of a Legal Framework for the Protection of Internally Displaced Persons in Africa,” Journal of African Law 50 (2006): 187–97. 32 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 23 Oct. 2009; Allehone Mulugeta Abebe, “The African Union Convention on Internally Displaced Persons: Its Codification Background, Scope, and Enforcement Challenges,” Refugee Survey Quarterly 29, no. 3 (2010): 42. 33 Kälin, “The Guiding Principles on Internal Displacement as International Minimum Standard and Protection Tool,” 29–30. 34 Stephen D. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables,” International Organization 36, no. 2 (1982): 186. 35 Donald J. Puchala and Raymond F. Hopkins, “International Regimes: Lessons from Inductive Analysis,” International Organization 36, no. 2 (1982): 249; and Oran R. Young, “International Regimes: Problems of Concept Formation,” World Politics 32, no. 3 (1980): 348–52. 36 Goertz, International Norms and Decisionmaking, 15. 37 Alexander Betts, “From Persecution to Deprivation: How Refugee Norms Adapt at Implementation,” in Implementation and World Politics: How International Norms Change Practice, ed. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014), 31. 38 Orchard, A Right to Flee, 30. 39 Karen J. Alter and Sophie Meunier, “The Politics of International Regime Complexity,” Perspectives on Politics 7, no. 1 (2009): 13. 40 Tim Morris, “UNHCR, IDPs and Clusters,” Forced Migration Review 25 (2006). 41 UN Office for the Coordination of Humanitarian Affairs, Consolidated Appeals Process (CAP): Appeal for Improving Humanitarian Response Capacity: Cluster 2006 (New York: UN OCHA, 2006). 42 Elizabeth G. Ferris, The Politics of Protection: The Limits of Humanitarian Action (Washington, DC: Brookings Institution Press, 2011), 120. 43 Weiss and Korn, Internal Displacement, 142. 44 UNHCR, The Protection of Internally Displaced Persons and the Role of UNHCR (Geneva: UNHCR, 2007), 11. 45 Jean-Philippe Lavoyer, “Commments on the Guiding Principles on Internal Displacement,” International Review of the Red Cross no. 324 (1998). 46 Ibid. 47 ICRC, “ICRC Position on Internally Displaced Persons (IDPs),” May 2006, 3. 48 Melissa T. Labonte and Anne C. Edgerton, “Towards a Typology of Humanitarian Access Denial,” Third World Quarterly 34, no. 1 (2013): 49. 49 UNGA, “Protection of and Assistance to Internally Displaced Persons: Situation of Internally Displaced Persons in the Syrian Arab Republic,” A/67/931, 15 July 2013, 17.

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50 Zachary Steel, Tien Chey, Derrick Silove, Claire Marnane, Richard A. Bryant, and Mark Van Ommeren, “Association of Torture and Other Potentially Traumatic Events with Mental Health Outcomes among Populations Exposed to Mass Conflict and Displacement: A Systematic Review and Meta-Analysis,” Journal of the American Medical Association 302, no. 5 (2009). 51 Cohen and Deng, Masses in Flight, 25–6; Stephen Castles and Nicholas Van Hear, “Developing DFID’s Policy Approach to Refugees and Internally Displaced Persons,” Report to the Conflict and Humanitarian Affairs Department, Refugee Studies Centre, University of Oxford (2005): 37; ICRC, “Internal Displacement in Armed Conflict: Facing up to the Challenges,” Nov. 2009, www.icrc.org/eng/assets/files/other/icrc_002_4014.pdf, 4. 52 Mooney, “The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern,” 15–16. 53 María Alejandra Arias, Ana María Ibáñez, and Pablo Querubin, “The Desire to Return during Civil War: Evidence for Internally Displaced Populations in Colombia,” Peace Economics, Peace Science and Public Policy 20, no. 1 (2014). 54 Mooney, “The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern,” 16. 55 UNHCR, “High Commissioner’s Dialogue on Protection Challenges: Protecting the Internally Displaced,” Background Document 25 (Nov. 2013), 3. 56 Paul Spiegel, Mani Sheik, Carol Gotway-Crawford, and Peter Salama, “Health Programmes and Policies Associated with Decreased Mortality in Displaced People in Postemergency Phase Camps: A Retrospective Study,” The Lancet 360, no. 9349 (2002): 1927. 57 The Sphere Project, Humanitarian Charter and Minimum Standards in Humanitarian Response (Bourton on Dunsmore: Practical Action Publishing, 2011), 292. 58 Michael J. Toole and Ronald J. Waldman, “Refugees and Displaced Persons: War, Hunger, and Public Health,” Journal of the American Medical Association 270, no. 5 (1993): 602. 59 Ibid. 60 Peter Salama, Paul Spiegel, Leisel Talley, and Ronald Waldman, “Lessons Learned from Complex Emergencies over Past Decade,” The Lancet 364, no. 9447 (2004): 1803. 61 Ibid., 1802–3. 62 John Hagan and Wenona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge: Cambridge University Press, 2008), 83; Francesco Grandesso, Frances Sanderson, Jenneke Kruijt, Ton Koene, and Vincent Brown, “Mortality and Malnutrition among Populations Living in South Darfur, Sudan: Results of 3 Surveys, September 2004,” Journal of the American Medical Association 293, no. 12 (2005): 1493; Richard Garfield and Jonny Polonsky, “Changes in Mortality Rates and Humanitarian Conditions in Darfur, Sudan 2003–2007,” Prehospital and Disaster Medicine 25, no. 6 (2010): 501. 63 Gilles Guerrier, Malaïka Zounoun, Olimpia Delarosa, Isabelle Defourny, Michelo Lacharite, Vincent Brown, and Biagio Pedalino, “Malnutrition and Mortality Patterns among Internally Displaced and Non-Displaced Population Living in a Camp, a Village or a Town in Eastern Chad,” PLoS One 4, no. 11 (2009); The Republic of Uganda Ministry of Health and the World Health Organization, “Health and Mortality Survey among Internally Displaced Persons in Gulu, Kitgum and Pader Districts, Northern Uganda,” July 2005, www.who. int/hac/crises/uga/sitreps/Ugandamortsurvey.pdf.

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64 UNHCR, “Protracted Refugee Situations,” EC/54/SC/CRP.14, 10 June 2004, 2. 65 Gil Loescher and James Milner, Protracted Refugee Situations: Domestic and International Security Implications, Adelphi Papers (Oxford: Oxford University Press, 2005). 66 Alex Mundt and Elizabeth Ferris, “Durable Solutions for IDPs in Protracted Situations: Three Case Studies,” in The Brookings Institution-University of Bern Project on Internal Displacement (Brookings Institution: Washington, DC, 2008). 67 Francis Mading Deng, “Promoting Responsible Sovereignty in Africa,” in African Reckoning: A Quest for Good Governance, ed. Francis Mading Deng and Terrence Lyons (Washington, DC: The Brookings Institution, 1998), 3. 68 Nils Geissler, “The International Protection of Internally Displaced Persons,” International Journal of Refugee Law 11, no. 3 (1999): 469. 69 IASC, Protection of Internally Displaced Persons (New York: UN Office for the Coordination of Humanitarian Affairs, 1999), 4. 70 Sylvie Giossi Caverzasio, Strengthening Protection in War: A Search for Professional Standards (Geneva: International Committee of the Red Cross, 2001), 19. 71 IASC, Protection of Internally Displaced Persons, 4. 72 UNHCR, “An Introduction to International Protection: Teaching Module No. 1,” 2005, 7; Ferris, The Politics of Protection, 97. 73 United Nations, Handbook for the Protection of Internally Displaced Persons (New York: UN Global Protection Cluster Working Group, 2010), 7. 74 Hugo Slim and Andrew Bonwick, Protection: An ALNAP Guide for Humanitarian Agencies (London: Overseas Development Institute, 2005). 75 Guy S. Goodwin-Gill, “International Protection and Assistance for Refugees and the Displaced: Institutional Challenges and United Nations Reform” (Conference on Refugee Protection in International Law: Contemporary Challenges, Oxford, 2006), 6. 76 Slim and Bonwick, Protection: An ALNAP Guide for Humanitarian Agencies, 87–91; Sorcha O’Callaghan and Sara Pantuliano, Protective Action: Incorporating Civilian Protection into Humanitarian Response (London: Humanitarian Policy Group, Overseas Development Institute, 2007), 11; Mark Frohardt, Diane Paul, and Larry Minear, Protecting Human Rights: The Challenge to Humanitarian Organizations (Providence: Thomas J. Watson Institute for International Studies Occasional Paper #35, 1999), 42. 77 Slim and Bonwick, Protection: An ALNAP Guide for Humanitarian Agencies, 114; Michael Barnett, “Humanitarianism Transformed,” Perspectives on Politics 3, no. 4 (2005): 733.

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Norm emergence and contestation within the IDP protection regime

Creating new norms Regime complexity and an international humanitarian regime complex The institutionalization of the IDP regime Conclusions: norms and the IDP regime

I have suggested that the 1998 Guiding Principles on Internal Displacement provide a framework for states and other actors to understand internal displacement as an international problem and to provide a core set of rights for the internally displaced and responsibilities on the part of states. This has built on prior normative understandings. The first—that IDPs should be provided with international assistance—emerged around informal practices by UNHCR beginning in the 1970s. The second—that IDPs represent an international problem which, while primarily the responsibility of their own state, requires the international community to also provide them with assistance and protection—emerged in the early 1990s. The Guiding Principles are critical to understanding the problem of internal displacement not only because they provide the most widely accepted definition of internal displacement, one recognized today by a range of international and regional organizations, by states, and in law at the regional level, but also because they restate the existing rights of internally displaced persons under other bodies of law. The introduction of the Guiding Principles, therefore, reflects a significant and positive shift on the part of the international community. But the Guiding Principles have done more than this as well. They have built on these earlier normative understandings to create new shared understandings around how the international community needs to respond to the IDP “problem”; shared understandings which today provide a normative underpinning for an international IDP protection regime. However, while international recognition of the need for IDPs to receive protection and assistance clearly exists, this recognition has—as

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yet—failed to translate into clear and consistent policy responses at the international, regional, and domestic levels. This chapter, consequently, argues that the IDP protection regime remains challenged along two dimensions. The first is how the individual norms which make up this regime are actually interpreted by states and other actors. Rather than assuming that institutionalization at the international level has created clear and consistent understandings of these norms, I argue that the implementation process within organizations (as they tailor their activities to IDPs) and within states (as they create their own domestic legislation and policies to protect and assist their own IDP populations) has led to a process whereby these core international norms have been contested and reinterpreted. The second dimension reinforces these issues and reflects the growth of complexity at the international level. As noted in the introduction, when the modern refugee regime was created, it was anchored in both the 1951 Refugee Convention and in the role of UNHCR. The growth of global governance over the ensuing decades, however, has meant that international regimes no longer exist in isolation. Instead, there is a new focus on regime complexes, which may be nested, overlapping, and not hierarchically ordered. Thus, while an IDP protection regime exists, it is nested within a larger humanitarian protection regime complex which thereby creates a range of overlaps between the IDP regime and other regimes with different subjects including refugees and civilians.

Creating new norms The IDP protection regime is composed of a bundle of different norms. Within International Relations constructivist scholarship, norms are understood to be shared understandings of appropriate behavior for actors with a given identity which isolates a single strand of behavior.1 The most widely accepted model of norm emergence is Finnemore and Sikkink’s norm life cycle model,2 which makes a number of predictions around the role of norm entrepreneurs and domestic and international environments in shaping the process through which new norms emerge and whether they end up being widely adopted by states and other international actors. At the initial stage of norm emergence, they argue that these norm entrepreneurs can be critical in placing an issue on the international agenda. Such actors can “call attention to issues or even ‘create’ issues by using language that names, interprets and dramatizes them.”3 Critical to their efforts is the use of framing—“the conscious strategic efforts by groups of people to fashion shared understandings of the world and of themselves that legitimate and motivate collective action.”4

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Following the emergence of a new norm, early adopting states become “norm leaders” and socialize other states to follow them through a variety of mechanisms including legitimation effects, self-esteem effects, and pressure for conformity.5 Once a critical mass of states adopts a new norm, it passes a threshold or tipping point.6 Following this, norms are so widely accepted that they “are internalized by actors and achieve a ‘taken-for-granted’ quality that make conformance with the norm almost automatic.”7 This is an important step. Internalized norms are viewed as “‘binding,’ as having qualities of ‘oughtness.’”8 Frost similarly refers norm settling; a norm is settled “where it is generally recognized that any argument denying the norm (or which appears to override the norm) requires special justification.” Violating a settled norm should, therefore, trigger either a process of justification or will be undertaken clandestinely.9 There are, however, two issues with the Finnemore and Sikkink account of norm emergence, reflecting the roles played by norm entrepreneurs in this process and how norms are institutionalized. Finnemore and Sikkink implicitly suggest norm entrepreneurs work through an outside-in process, with the goals of norm entrepreneurs primarily to be to influence states at the early stages. But this assumes that these actors are working at the international level or, if at the domestic level, to be operating outside government. Much academic work has focused on the myriad number of individuals, international, and non-governmental organizations, transnational advocacy networks, and even states operating as norm entrepreneurs at both the international and domestic levels.10 Rather than arguing that a discrete set of actors exist who are “norm entrepreneurs,” in other work, I have suggested it is more useful to examine a category of norm entrepreneurship by drawing on the idea of policy entrepreneurship. Rather than being specific actors, policy entrepreneurs are anyone who “distinguish themselves through their desire to significantly change current ways of doing things in their area of interest.”11 Thus, norm entrepreneurship occurs where such activities are “a category of action through which actors are willing to devote considerable resources (material, and/or ideational) in order to introduce, change, or replace international norms in their areas of interest.”12 In order to engage in norm entrepreneurship, actors need to have their own sources of authority and legitimacy to exercise power across borders13 or they need to have direct connections with domestic institutions or other ways to mobilize domestic support. This means that the early stage of norm entrepreneurship is tied to the domestic level within key states, and for actors to succeed at this level, they need to be empowered by a domestic agent whether individual, group, or government.14 This can be done through different mechanisms. Transnational advocacy networks make links between civil society actors in individual states,

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governments, and international organizations. Local groups can work by themselves to “build congruence between transnational norms (including norms previously institutionalized in a region) and local belief and practices,” a process Acharya refers to as norm localization.16 Others can possess their own domestic sources of political legitimacy. This can include political elites, including those serving within key political institutions and with decisionmaking authority and those who have substantial influence over decisionmaking.17 Therefore, through these mechanisms, a wide range of actors can be involved in the process of norm entrepreneurship. The second issue is how Finnemore and Sikkink understand the process of norm institutionalization. For them, institutionalization is critical to the emergence of a new norm. Institutionalization, they argue, occurs when the new norm is introduced in specific sets of international rules and organizations. This contributes strongly to the possibility for a norm cascade both by clarifying what, exactly, the norm is and what constitutes violation (often a matter of some disagreement among actors) and by spelling out specific procedures by which norm leaders coordinate disapproval and sanctions for norm breaking.18 Institutionalization can then lead to a process of norm diffusion, whereby these institutionalized norms move downward to the state level, or across states through a process of adoption or mimicry.19 While important, this work reflects one form of norm change through emergence: as a new norm emerges, it either replaces or transforms existing norms in the same issue area. A second form of change occurs through violation. As Panke and Petersohn have argued, a norm may degenerate if it loses its prescriptive status due to widespread non-compliance, either being replaced through a competitive process or fading away entirely.20 A third form of change occurs as new and existing norms are subject to interpretation and reinterpretation through the process of implementation. There has been a renewed focus on interpretation and reinterpretation of new norms as they are subject to contestation. Contestation, following Wiener, is a societal practice in which rules, regulations, or procedures are critically questioned in either an explicit (through contention, objection, questioning, or deliberation) or an implicit (through neglect, negation, or disregard) manner. Contestation, she notes, is constitutive for social change because it allows legitimacy gaps between fundamental norms and standardized procedures to be identified and filled.21 This is an issue for institutionalization as a discrete norm emergence process, as even institutionalized norms may not spell out the actions

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required for norm following, and hence norm adoption may simply usher in “a new phase of battle over the norm itself.”23 Per Krook and True, norms are works in progress, which “tend to be vague, enabling their content to be filled in many ways and thereby to be appropriated for a variety of different purposes.”24 They are exposed to ongoing contestation and “co-optation, drift, accretion and reversal of a norm—including disputes over whether it a norm at all—are constant possibilities.”25 Thus, Wiener argues that a norm’s meaning is “constituted through an interactive process. Interpretation is thus derived from the social practice of enacting meaning that is used in a specific context.”26 Documented language, even for legal norms, indicates only a norm’s formal validity, “while its social recognition stands to be constructed by social interaction.”27 Therefore, normative change occurs through interpretations at both the domestic and international levels.28 As Sandholtz notes, this is driven by the tensions generated between what a norm states and the specific actions it is ascribed to, tensions which “ceaselessly casts up disputes, which, in turn, generate arguments, which then reshape both rules and conduct.”29 Existing International Relations literature on norms does acknowledge variation in how norms play out domestically, highlighting a range of ways in which transmission is contested. Ideationally, international norms are subject to “framing,” “fit,” and “grafting” onto regional cultural contexts30 or may be subject to significant reinterpretation.31 Materially, state capacity has been shown to be central to implementation.32 Institutionally, national legal and constitutional frameworks have been shown to matter for how norms are implemented in different states.33 Domestic institutions can play the role of policy gatekeepers or veto players if they have “sufficient power to block or at least delay policy change.”34 Institutions at the regional level can also directly shape the domestic interpretation of international norms.35 These arguments suggest that rather than seeing a norm fixed through an institutionalization process, it remains open to interpretation and to contestation. In other work (with Alexander Betts), I have suggested that alongside institutionalization we need to take into account implementation as a parallel process to that of norm institutionalization, with norm implementation drawing “attention to the steps necessary to introduce the new international norm’s precepts into formal legal and policy mechanisms within a state or organization in order to routinize compliance.”36 Thus, while institutionalization may bring precision to a norm, clarifying key issues, the implementation process creates an interpretative space around any norm. This also suggests that treaty norms—those which have been enacted through formal international conventions—may be only one type of norms. Other types are also possible, which, while not formally institutionalized

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at the international level, take on legitimacy through the implementation process. Principle norms are based on less formal principles, reflecting shared understandings that states have not codified. Institutionalization of such norms clearly still occurs through their acceptance by international bodies, such as through UN resolutions or declarations or through customary or soft law processes. The Guiding Principles bundles together several such principle norms with respect to IDPs.37 The third category, policy norms, are defined by Park and Vetterlein as “shared expectations for all relevant actors within a community about what constitutes appropriate behaviur, which is encapsulated in . . . policy” and are primarily subject to internal processes.38 Policy norms, while subject to these internal processes, reflect broader treaty or principle norms being interpreted (and even contested) within organizations.39 Implementation also provides a different way of understanding the process by which states and organizations bring their practices into conformity with a new norm, or through which their understanding of that norm may be reshaped. While a state may follow a rule with little effort, without implementation, compliance may be a fair-weather process since neither states nor other organizations have made strong commitments nor adopted measures to restrict their behavior.40 Implementation processes are also likely to vary across states. As Cortell and Davis note, “a range of policy choices can be consistent with a given norm.”41 Similarly, Zimmermann suggests that as norms are brought down to the domestic level, first in discourse, then in law, and finally through implementation into policy, they can go through processes of reinterpretation and reshaping.42 And, as Welsh notes, “contestation over the meaning of a new norm can persist into the implementation phase, particularly as new circumstances and crises, different from those surrounding the norm’s genesis, arise.”43 This is because implementation is a process of contestation and re-contestation at the domestic level. Through such contestations, actors within and outside of government effectively debate what an international norm means for the state. Hence, these local actors are highly significant for defining how it is that a norm manifests in practice44 and is subsequently interpreted. At the same time, their efforts can also shift how the norm is understood at the international level.45 These domestic processes allow for a scope of variation in how any given norm is interpreted by an actor. This variation may affect the basic understanding of what the norm means for an actor with a given identity; or it may affect how the norm is applied in a given situation. Thus, the implementation process may lead to a norm being more narrowly applied by one actor to a specific situation than by another actor or as excluded from a specific situation. Or, it may see the norm stretched to address

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unforeseen circumstances, with one actor interpreting the norm as applying more widely to a specific situation than by another actor, or as included in a specific situation for which the norm generally is not seen to apply.46 This leads to two important and related questions. The first is, how do we see common understandings of international norms emerge? The second is, how do states and other actors understand and interpret normative obligations? In other words, how do they know what a norm requires them to do? Three factors can help or hinder how widely contested individual norms are by different actors, and how clearly they are linked together. First, the intrinsic characteristics of a norm matter. A range of scholarship has pointed to the fact that norms which are clear and specific rather than ambiguous and complex are more likely to be effective, as are norms that have survived repeated challenges.47 Precision through international institutionalization of the norm—not only in treaties but also in soft law frameworks like the Guiding Principles—can help to clarify what a norm means for a range of actors. Thus, Hurd notes that international treaties need to create specific legal obligations that can be complied with or violated in order to gain legitimacy, creating bridges to domestic law or by creating new international legal authorities.48 But norms can also be made more precise as they become routinized through practice, with actors communicating and creating common interpretations through processes of imitation, learning, or policy transfer.49 The implementation process, too, can increase the precision of a norm at the international level, as actors may adopt new interpretations of the norm, but then communicate these up to the international realm for further deliberation and contestation.50 But implementation may also increase the ambiguity of a norm when such understandings are not communicated. Ambiguity has generally been defined as “the ability of a norm to be interpreted in varied ways.”51 Some degree of ambiguity can be useful, as too little ambiguity around a norm “can undermine the consensus, flexibility, and adjustment necessary to incremental change.”52 And yet ambiguity also introduces a range of issues. As Shelton notes, “Ambiguity and open-endedness of international standards can limit efforts to secure compliance, because states may be unsure of the required conduct or unwilling to move beyond minimal efforts to implement the perceived norm.”53 Thus, the domestic contestation process can increase these effects, as it leads actors to have a range of different understandings of the norm, leaving the norm fluid or undefined. Not knowing what a norm requires can be a major impediment to its application and use. The content of a norm also affects its application. Norms can also encourage a range of different proscriptive or prescriptive behaviors. A proscriptive norm forbids a certain pattern of behavior.54 Thus, the norm against landmines forbids actors through an international convention to

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engage in the use, sale, or stockpiling of anti-personnel and anti-vehicle landmines. The genocide convention forbids actors from engaging in genocide. As this norm takes the form of an injunction, it is relatively easy to follow—the individual actor must simply not engage in the action encompassed by the norm. A prescriptive norm, by contrast, requires a positive duty or action on part of states; the norm requires the individual actor not only to not engage in the injuncted behavior, but also to sanction in some way other actors if they do so.55 In this sense, by requiring a positive duty, prescriptive norms also create a responsibility for actors who follow the norm. To be responsible for some act, following Erskine, is “to be answerable to for it.”56 But responsibilities can vary. Actors may accept a direct responsibility in internalizing the prescriptive norm. Alternatively, it may be a diffuse responsibility, where such responsibility “can make it easier for states and international organizations to shirk their obligations.”57 Normative ambiguity may make it unclear if a norm applies in a given situation and, if it does, what actions or responsibilities it may require.58 Thus, norms can be contested over their content; equally, they can be contested over their application—what actions they require in a specific situation .59 This is particularly likely during crises in which the application of international norms is vague or ambiguous given the intense nature of the ideational contestation.60 In such circumstances, ambiguity surrounding how the norm should be applied can reinitiate the implementation process, and trigger a process of re-contestation of the norm at the domestic level, leading to a clarification of how the norm should be applied. A third element which matters is how a specific norm fits together and is nested within other norms and international structures. Norms, after all, isolate “single strands of behavior.” Other structures, therefore, are needed in order to “emphasize the way in which behavioral rules are structured together and interrelate.”61 Beyond individual norms or rules, structures must “provide processes to interpret those rules; and they demark who should have a role in interpreting the rules.”62 Individual norms being positioned within regimes can help to clarify how they are understood. By regime, here, I follow a view that they are social institutions63 which have suasion by both providing “benefits to participants, but also through the shared understandings and international norms they embody.”64 In this sense, regimes “frame the nature and scope of a given problem and provide potential response scripts.”65 They serve as a “web of meaning” in which individual issue-specific norms can interact and become linked together. Regimes, therefore, function as a behavior-guide for states; they provide a basis for cooperation and coherent responses to common problems.66

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Regime complexity and an international humanitarian regime complex Thus, the intrinsic characteristics of a norm, the responsibilities it creates, and whether it is nested within a regime can all help to clarify how the norm is understood by actors. But, as noted with the idea of responsibilities, contestations can occur over not only how a norm is understood but also how it should be applied. Norms today do not exist on their own. The growing complexity of global governance means that linkages frequently develop across regimes. Raustiala and Victor were the first to suggest that overlaps between regimes could lead to a regime complex, “an array of partially overlapping and nonhierarchical institutions governing a particular issue-area.”67 More recently, Alter and Meunier have focused on an allied but broader notion of “regime complexity” as referring to the “presence of nested, partially over-lapping, and parallel international regimes that are not hierarchically ordered.”68 Orsini, Morin, and Young suggest such complexes can “exhibit over-lapping membership; and generate substantive, normative, or operative interactions recognized as potentially problematic whether or not they are managed effectively.”69 The focus of this work has been primarily on how actors, principally states, can use regime complexity in a strategic manner, such as by undermining obligations through forum-shopping and by shifting regimes.70 And yet regime complexes are, by their nature, messy in several ways. First, new international problems tend to be accommodated within existing regimes and formal international organizations, rather than having new, separate, structures created. Further, the regime complexity literature has also primarily focused on state agency, particularly through the creation of new rules and legal arrangements,71 rather than on the agency—and basic practices—of actors within these regime complexes. Examining actor-based practices within a regime complex provides an alternative way of seeing directly the unanticipated effects that regime complexes may generate. For “divided actors”—those whose formal mandates and roles encompass multiple regimes within the complex—interactions between regimes define the space in which these organizations operate and their capacities to do so. This suggests that, at a deeper level, regime complexes constitute basic organizational practices.72 As shown in Figure 1.1 above, the issue of IDP protection has clear linkages with other regimes, including the international refugee regime and the international humanitarian law regime, with its focus on civilian protection. Through the notion of “responsible sovereignty,” it also links in with the developing responsibility to protect regime.73 Equally, IDP protection is nested within a larger international humanitarian regime complex, a

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Cluster Approach International Humanitarian Regime

Sovereignty and NonInterference

Principles of humanity, impartiality, neutrality, independence

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Internally Displaced Persons Protection Regime

Guiding Principles on Internal Displacement

The Responsibility to Protect Regime

UN Charter

International Refugee Regime

International Humanitarian and Human Rights Law

Right to Seek Asylum

Refugee Convention

Figure 1.1 The International Humanitarian Regime Complex

complex based on principles of humanity, impartiality, and neutrality. But the development of the international humanitarian regime complex creates three important contradictions. The first of these reflects the status of who the regime’s subject is. Each of these regimes has a foundation in international law, and each focuses on people with a particular status: IDP, refugee, civilian. People can simultaneously have multiple statuses and fall within different regimes; equally, they can transfer between these regimes. The second contradiction is that some humanitarian actors may cross several regimes within the complex, and therefore find their own roles divided. Thus, UNHCR’s core responsibility under its Statute is toward refugees, but it has increasingly played a larger and larger role in providing IDPs with protection. The third contradiction reflects that each of these regimes is based in state sovereignty, yet each provides a different view of the role of the state in the humanitarian process. For refugees, they require international protection because they are outside of their own state and cannot rely on its protection. For IDPs, by contrast, the state is presumed to have the primary responsibility for their assistance and protection.

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The institutionalization of the IDP regime How, then, can we measure the institutionalization and implementation of the norms within the IDP regime? For institutionalization, one test is to see how often norms are referred to in international organizations such as the United Nations. Here, resolutions can serve as good proxy for discourse, clearly indicating how often a new norm is recognized by the global community. Three UN bodies deal with IDP issues: the General Assembly, the Security Council, and the Commission on Human Rights, which was replaced by the Human Rights Council in 2006. Figure 1.2 shows the number of resolutions per year in each of these bodies that have made substantive references (two or more) to internally displaced persons. A few points can be drawn from this. First, there is a clear pattern of emergence for the issue. Internally displaced persons were effectively not on the agenda of these bodies in the early 1990s—in 1990, only one resolution in each of the General Assembly and the Security Council referenced the issue, and the Commission on Human Rights did not raise it at all. In the General Assembly, this was a reference to relief programs for internally displaced persons following an international conference on displaced persons.74 In the Council, this was a reference to the “decision of the Government of Israel, the occupying Power, to resume the deportation of Palestinian civilians in the occupied territories,”75 framed clearly within the context of international humanitarian law. By contrast, within five years, each body was routinely referencing IDPs in roughly 10 to 15 resolutions per year.

14 12 10 8 6 4 2 19 9 19 0 9 19 1 9 19 2 9 19 3 94 19 9 19 5 9 19 6 9 19 7 9 19 8 9 20 9 0 20 0 0 20 1 0 20 2 0 20 3 0 20 4 0 20 5 0 20 6 0 20 7 0 20 8 0 20 9 1 20 0 1 20 1 1 20 2 13 20 14

0

UN General Assembly Resolution UN Security Council Resolution UN Commission on Human Rights/Human Rights Council Resolution

Figure 1.2 Substantive Reference to IDPs in United Nations Resolutions, 1990– 2014 Note: The Human Rights Council replaced the Commission on Human Rights in 2006.

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Second, while the issue is clearly on the agenda of all three bodies, a significant number of these resolutions reference specific IDP issues. Within the UN Security Council, early references were focused on conflict, but then expanded to reference ethnic cleansing and the humanitarian situation and assistance.76 But the Council also made increasing references to internally displaced persons within the context of its authorization of peacekeeping missions. Thus, the creation of the United Nations Operation in Somalia II (UNOSOM II) referred explicitly to the mission assisting “in the repatriation of refugees and displaced persons within Somalia.”77 By contrast, the General Assembly, Commission on Human Rights, and Human Rights Council frequently authorize the mandates for the various representatives and special rapporteurs or with reference to peacekeeping missions or individual conflicts in the Security Council. Thus, we can see a division of labor between the different bodies, though with the Human Rights Council’s replacement of the Commission on Human Rights, the IDP issue has been less active on its agenda. As a test, consequently, examining resolutions in this manner clearly points not only to the fact that IDPs are now on the international agenda, but also that there was a critical shift which occurred in the early 1990s. Documenting what led to this shift and how practices within the UN, other international and non-governmental organizations, and within states themselves have since evolved will be the core focus of the rest of the book.

Conclusions: norms and the IDP regime I have made three arguments in this chapter: around norms, regimes, and regimes complexes. Norms are critical in order to understand how states and other international actors behave toward IDPs. Three norms around IDPs exist—who they are, their need for international assistance, and their need for international protection. Why these norms exist and how they developed over time will be examined over the next few chapters. However, at a theoretical level, I have argued that norms are subject to interpretation and contestation at both the domestic and international levels. Alongside a process of institutionalization, therefore, we also need to examine how new and existing are implemented at the domestic level and within organizations with this implementation process helping to clarify how these norms are understood for specific actors. IDPs challenge the traditional accounts around norm emergence in three ways. The first is that rather than being recognized at the international level through a convention, they instead are supported only by the soft law Guiding Principles, and therefore by a set of principles rather than treaty norms. This, in turn, means that while a broader IDP protection regime

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exists, it is fundamentally an informal regime. Finally, while these norms and this regime have developed extensively over the past 25 years, they are nested within a broader regime complex, and sit alongside other regimes—such as the international refugee regime and the international humanitarian law regime—which have both longer histories and which are based around both formal treaty norms and the roles of dedicated— rather than divided—international actors. These three issues, consequently, ensure that the response to IDPs is more ad hoc, more complex, and more subject to change and to failure than responses within these other regimes.

Notes 1 Jepperson, Wendt, and Katzenstein, “Norms, Identity and Culture in National Security,” 52; Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 891. 2 Finnemore and Sikkink, “International Norm Dynamics and Political Change.” 3 Ibid., 896–7. 4 Doug McAdam, John D. McCarthy, and Mayer N. Zald, Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings (Cambridge: Cambridge University Press, 1996), 6; Robert D. Benford and David A. Snow, “Framing Processes and Social Movements: An Overview and Assessment,” Annual Review of Sociology 26 (2000): 614. 5 Katharina P. Coleman, “Locating Norm Diplomacy: Venue Change in International Norm Negotiations,” European Journal of International Relations 19, no. 1 (2013): 166; Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 901–2. 6 Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 896–906. 7 Thomas Risse and Kathryn Sikkink, “The Socialization of International Human Rights Norms into Domestic Practice,” in The Power of Human Rights: International Norms and Domestic Change, ed. Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink (Cambridge: Cambridge University Press, 1999), 15. 8 Martha Finnemore, “Are Legal Norms Distinctive?,” New York University Journal of International Law and Policy 32, no. 3 (2000): 702–3; Nicole Deitelhoff, “The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case,” International Organization 63, no. 1 (2009): 34. 9 Mervyn Frost, Ethics in International Relations: A Constitutive Theory (New York: Cambridge University Press, 1996), 105–6. 10 Audie Klotz, “Transnational Activism and Global Transformations: The AntiApartheid and Abolitionist Experiences,” European Journal of International Relations 8, no. 1 (2002): 56; Thomas Risse, “International Norms and Domestic Change: Arguing and Communicative Behavior in the Human Rights Area,” Politics and Society 27, no. 4 (1999); Peter M. Haas, “Introduction: Epistemic Communities and International Policy Coordination,” International Organization 46, no. 1 (1992); Michael N. Barnett and Martha Finnemore, Rules for the World: International Organizations in Global Politics (Ithaca: Cornell University Press, 2004); Simon Rushton, “The UN Secretary-General and Norm Entrepreneurship: Boutros Boutros-Ghali and Democracy Promotion,” Global

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14 15

16 17 18 19

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Governance: A Review of Multilateralism and International Organizations 14, no. 1 (2008). Michael Mintrom and Phillipa Norman, “Policy Entrepreneurship and Policy Change,” Policy Studies Journal 37, no. 4 (2009): 650. Orchard, A Right to Flee, 37; see also Phil Orchard and Jamie Gillies, “Atypical Leadership: The Role of the Presidency and Refugee Protection, 1932–1952,” Presidential Studies Quarterly 45, no. 3 (2015). Bruce Cronin and Ian Hurd, “Introduction,” in The UN Security Council and the Politics of International Authority, ed. Bruce Cronin and Ian Hurd (Milton Park: Routledge, 2008); Deborah D. Avant, Martha Finnemore, and Susan K. Sell, “Introduction: Who Governs the Globe?,” in Who Governs the Globe?, ed. Deborah D. Avant, Martha Finnemore, and Susan K. Sell (Cambridge: Cambridge University Press, 2010), 2. Jeffrey T. Checkel, “Norms, Institutions, and National Identity in Contemporary Europe,” International Studies Quarterly 43, no. 1 (1999): 88–9. Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1998); Richard M. Price, “Reversing the Gun Sights: Transnational Civil Society Targets Land Mines,” International Organization 52, no. 3 (1998). Amitav Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism,” International Organization 58, no. 2 (2004): 241. Orchard and Gillies, “Atypical Leadership.” Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 896–7, 899. Checkel, “Norms, Institutions, and National Identity in Contemporary Europe,” 88; Beth A. Simmons, Frank Dobbin, and Geoffrey Garrett, “The Global Diffusion of Public Policies: Social Construction, Coercion, Competition or Learning?,” Annual Review of Sociology 33 (2007); Jason C. Sharman, “Power and Discourse in Policy Diffusion: Anti-Money Laundering in Developing States,” International Studies Quarterly 52 (2008). Diana Panke and Ulrich Petersohn, “Why International Norms Disappear Sometimes,” European Journal of International Relations 18, no. 4 (2012): 719–42. Antje Wiener, A Theory of Contestation (Heidelberg: Springer, 2014), 2–3. David G. Victor, Kal Raustiala, and Eugene B. Skolnikoff, The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge: The MIT Press, 1998), xi. Kees Van Kersbergen and Bertjan Verbeek, “The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union,” European Journal of International Relations 13, no. 2 (2007): 219. Mona Lena Krook and Jacqui True, “Rethinking the Life Cycles of International Norms: The United Nations and the Global Promotion of Gender Equality,” European Journal of International Relations 18, no. 1 (2012): 104. Ibid. Antje Wiener, The Invisible Constitution of Politics (Cambridge: Cambridge University Press, 2008), 4. Antje Wiener, “Enacting Meaning-in-Use: Qualitative Research on Norms and International Relations,” Review of International Studies 35, no. 1 (2009): 179; The Invisible Constitution of Politics, 4. Wiener, The Invisible Constitution of Politics, 50, 81.

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29 Wayne Sandholtz, “Dynamics of International Norm Change: Rules against Wartime Plunder,” European Journal of International Relations 14, no. 1 (2008): 101. 30 Acharya, “How Ideas Spread.” 31 Antje Wiener, “Contested Meanings of Norms: A Research Framework,” Comparative European Politics 5, no. 1 (2007); “Enacting Meaning-in-Use: Qualitative Research on Norms and International Relations.” 32 Johannes Urpelainen, “Regulation under Economic Globalization,” International Studies Quarterly 54, no. 4 (2010); Stacy D. VanDeveer and Geoffrey D. Dabelko, “It’s Capacity, Stupid: International Assistance and National Implementation,” Global Environmental Politics 1, no. 2 (2001). 33 Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009); Thomas Risse-Kappen, Bringing Transnational Relations Back in: Non-State Actors, Domestic Structures, and International Institutions (Cambridge: Cambridge University Press, 1995), 16; Andrew P. Cortell and James W. Davis, “Understanding the Domestic Impact of International Norms: A Research Agenda,” International Studies Review 2, no. 1 (2000): 66; Jeffrey W. Legro, “Which Norms Matter? Revisiting the ‘Failure’ of Internationalism,” International Organization 51, no. 1 (1997). 34 Joshua W. Busby, “Bono Made Jesse Helms Cry: Jubilee 2000, Debt Relief, and Moral Action in International Politics,” International Studies Quarterly 51, no. 2 (2007): 254; see also George Tsebelis, Veto Players: How Political Institutions Work (Princeton, NJ: Princeton University Press, 2002), 442. 35 Checkel, “Norms, Institutions, and National Identity in Contemporary Europe”; Jeffrey T. Checkel, “International Institutions and Socialization in Europe: Introduction and Framework,” International Organization 59, no. 4 (2005). 36 Alexander Betts and Phil Orchard, “Introduction: The Normative Institutionalization-Implementation Gap,” in Implementation and World Politics: How International Norms Change Practice, ed. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014), 2. 37 Ibid. 38 Susan Park and Antje Vetterlein, “Owning Development: Creating Policy Norms in the IMF and the World Bank,” in Owning Development: Creating Policy Norms in the IMF and the World Bank, ed. Susan Park and Antje Vetterlein (Cambridge: Cambridge University Press, 2010), 4. 39 Urvashi Aneja, “International NGOs and the Implementation of the Norm for Need-Based Humanitarian Assistance in Sri-lanka,” in Implementation and World Politics: How International Norms Change Practice, ed. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014). 40 Abram Chayes and Antonia Handler Chayes, “On Compliance,” International Organization 47, no. 2 (1993); Ronald B. Mitchell, “Flexibility, Compliance and Norm Development in the Climate Regime,” in Implementing the Climate Regime: International Compliance, ed. Olav Schram Stokke, Jon Hovi, and Geir Ulfstein (Sterling, VA: Earthscan, 2005), 65–6; Simmons, Mobilizing for Human Rights: Internaional Law in Domestic Politics, 116. 41 Andrew P. Cortell and James W. Davis, “When Norms Clash: International Norms, Domestic Practices, and Japan’s Internalisation of the GATT/WTO,” Review of International Studies 31, no. 1 (2005): 9. 42 Lisbeth Zimmermann, “Same Same or Different? Norm Diffusion between Resistance, Compliance, and Localization in Post-Conflict States,” International Studies Perspectives 17, no. 1 (2016).

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43 Jennifer M. Welsh, “Norm Contestation and the Responsibility to Protect,” Global Responsibility to Protect 5, no. 4 (2013): 380. 44 Acharya, “How Ideas Spread,” 247–9. 45 Jochen Prantl and Ryoko Nakano, “The Politics of Norm Glocalisation: Limits in Applying R2P to Protecting Children,” Global Responsibility to Protect 10, no. 1–2 (2018); Amitav Acharya, “The R2P and Norm Diffusion: Towards a Framework of Norm Circulation,” Global Responsibility to Protect 5, no. 4 (2013); Brian L. Job and Anastasia Shesterinina, “China as a Global Norm-Shaper,” in Implementation and World Politics: How International Norms Change Practice, ed. A. Betts and P. Orchard (Oxford: Oxford University Press, 2014). 46 Alexander Betts, Survival Migration: Failed Governance and the Crisis of Displacement (Ithaca: Cornell University Press, 2013), 31. 47 Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 906–7; Chayes and Chayes, “On Compliance”; Legro, “Which Norms Matter”; Thomas M. Franck, The Power of Legitimacy among Nations (New York: Oxford University Press, 1990). 48 Ian Hurd, “Torture and the Politics of Legitimation in International Law,” in The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, ed. Andreas Føllesdal, et al. (Cambridge: Cambridge University Press, 2013), 168–70. 49 Martha Finnemore, National Interests in International Society (Ithaca, NY: Cornell University Press, 1996); Diane Stone, “Transfer Agents and Global Networks in the ‘Transnationalization’ of Policy,” Journal of European Public Policy 11, no. 3 (2004); Ann E. Towns, “Norms and Social Hierarchies: Understanding International Policy Diffusion ‘from Below’,” International Organization 66, no. 2 (2012): 185. 50 Betts and Orchard, “Introduction: The Normative InstitutionalizationImplementation Gap.” 51 Wesley W. Widmaier and Luke Glanville, “The Benefits of Norm Ambiguity: Constructing the Responsibility to Protect across Rwanda, Iraq and Libya,” Contemporary Politics 21, no. 4 (2015): 368. 52 Ibid. For an example, see Sarah Percy, “The Unimplemented Norm: AntiMercenary Law and the Problems of Institutionalization,” in Implementation and World Politics: How International Norms Change Practice, ed. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014). 53 Dinah Shelton, “Introduction: Law, Non-Law and the Problem of ‘Soft Law’,” in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, ed. Dinah Shelton (Oxford: Oxford University Press, 2000), 14. 54 Richard M. Price, The Chemical Weapons Taboo (Ithaca, NY: Cornell University Press, 1997); Sarah Percy, Mercenaries: The History of a Norm in International Relations (Oxford: Oxford University Press, 2007). 55 Luke Glanville, “Norms, Interests and Humanitarian Intervention,” Global Change, Peace & Security 18, no. 3 (2006): 154–6. 56 Toni Erskine, “Making Sense of ‘Responsibility’ in International Relations: Key Questions and Concepts,” in Can Institutions Have Responsibilities, ed. Toni Erskine (Houndsmill: Palgrave Macmillian, 2003), 7. 57 Jennifer M. Welsh and Maria Banda, “International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?,” Global Responsibility to Protect 2, no. 3 (2010): 219.

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58 Percy, Mercenaries; Percy, “The Unimplemented Norm.” 59 Nicole Deitelhoff and Lisbeth Zimmermann, Things We Lost in the Fire: How Different Types of Contestation Affect the Validity of International Norms (Frankfurt am Main: PRIF Working Paper, 2013). Winston proposes a slightly different structure, suggesting each norm’s conceptual structure is composed of three components—problem, value, and behavior—and that while many norms see these three components fused together, it is possible for these components to vary leading to processes of norm flexibility and adaptation. Carla Winston, “Norm Structure, Diffusion, and Evolution: A Conceptual Approach,” European Journal of International Relations (Forthcoming). 60 Helen V. Milner and Robert O. Keohane, “Internationalization and Domestic Politics: An Introduction,” in Internationalization and Domestic Politics, ed. Helen V. Milner and Robert O. Keohane (Cambridge: Cambridge University Press, 1996), 16; Orchard, A Right to Flee. 61 Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 891. 62 Orchard, A Right to Flee, 20. 63 Marc A. Levy, Oran R. Young, and Michael Zurn, “The Study of International Regimes,” European Journal of International Relations 1, no. 3 (1995): 274; see also John Gerard Ruggie, “International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order,” International Organization 36, no. 2 (1982): 380. 64 Orchard, A Right to Flee, 29; Goertz, International Norms and Decisionmaking, 15. 65 Orchard, A Right to Flee. 66 Mark Neufeld, “Interpretation and the ‘Science’ of International Relations,” Review of International Studies 19, no. 1 (1993): 43; Andreas Hasenclever, Peter Mayer, and Volker Rittberger, Theories of International Regimes (Cambridge: Cambridge University Press, 1997), 165. 67 Kal Raustiala and David G. Victor, “The Regime Complex for Plant Genetic Resources,” International Organization 58, no. 2 (2004): 279. 68 Alter and Meunier, “The Politics of International Regime Complexity,” 13. 69 Amandine Orsini, Jean-Frédéric Morin, and Oran Young, “Regime Complexes: A Buzz, a Boom, or a Boost for Global Governance?,” Global Governance 19, no. 1 (2013): 29–30. 70 Alter and Meunier, “The Politics of International Regime Complexity”; Alexander Betts, “Institutional Proliferation and the Global Refugee Regime,” Global Governance 19, no. 1 (2013). 71 Raustiala and Victor, “The Regime Complex for Plant Genetic Resources,” 279. 72 Phil Orchard, “Transnational Humanitarian Action and Regime Complexity: The Case of Syria,” in Transnational Actors in War and Peace: Militants, Activists, and Corporations in World Politics, ed. David Malet and Miriam J. Anderson (Washington, DC: Georgetown University Press, 2017). 73 See “The Responsibility to Protect Regime,” in The Responsibility to Protect: Consolidation and Contestation, ed. Charles Hunt and Phil Orchard (Forthcoming). 74 UNGA, “International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa,” Res 45/137. 75 UNSC, “Territories Occupied by Israel,” S/RES/681, 1990. The Council had made earlier references to forced displacement of the Palestinians (UNSC, “Territories occupied by Israel,” S/RES/469, 1980, 1) and demanded the Apartheid

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South African regime cease “the uprooting, relocation, and denationalization of the indigenous African people” (UNSC, “South Africa,” S/RES/556, 1984, 1). 76 See UNSC, “Bosnia and Herzegovina,” S/RES/787, 1992, 1; UNSC, “Abkhazia, Georgia,” S/RES/892, 1993, 3; UNSC, “Armenia-Azerbaijan,” S/RES/ 884, 1993, 2. 77 UNSC, “Somalia,” S/RES/814, 1993, 4.

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Forced migrants, IDPs, and the role of international law

• • • •

Refugees as an international legal category Defining internal displacement Bringing the Guiding Principles into regional hard law Conclusion

If an IDP protection regime exists, what, therefore, is its foundation? As noted in the last chapter, this regime has been constructed amid a number of other regimes, many older than it is. The foundation of this regime, I argue ahead, is the 1998 Guiding Principles on Internal Displacement. The Guiding Principles are critical to understanding the problem of internal displacement both because they provide the most widely accepted definition of internal displacement, one recognized today by a range of international and regional organizations, by states, and in law at the regional level, but also because they restate the existing rights of internally displaced persons under other bodies of law. The role of international law is critical, as it provides the basis for both refugee and IDP protection. These groups, while legally distinct, both fall within the wider academic category of “forced migration” or as “forced migrants,” a term of art used to refer in general to individuals who move for involuntary reasons which can include refugees, IDPs, and other involuntary migrants.1 Such a view has the benefit that it can include a range of groups otherwise not adequately protected by international law, such as those displaced by development projects2 or “survival migrants” who have been forced outside their own country of origin because of an existential threat to which they have no access to a domestic remedy or resolution.3 At the same time, the move to “forced migrants” (and the inclusion of IDPs) has also been seen as an issue because it challenges the distinct legal status of refugees. Following the introduction of the Guiding Principles, Barutciski argued that these efforts could well weaken the rights

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of asylum, suggesting that it might both be “used to reinforce non-entrée policies by states and justify containment strategies.”4 There is certainly some evidence for this, for example, the expanded use of legal arguments around the so-called internal flight alternative, where it is argued that refugees could have safely moved elsewhere within their own countries, as a way to deny refugee status.5 However, containment policies pre-date the growing recognition of IDPs in the 1990s; hence, the Guiding Principles and other forms of protection offered to IDPs reflected more the already weakened form of asylum which states were offering.6 More recently, Hathaway has argued that refugees remain distinct from IDPs for two reasons. The first is “that a refugee is by definition within the absolute protective competence of the international community (which IDPs are not).” The second is that “the rights which follow from refugee status are directly related to the predicament of being outside their country of origin.”7 In effect, both arguments seek to disaggregate refugees from IDPs on the basis of the legal protections they receive. And yet, there are three issues with this type of argument. The first, and one alluded to both earlier and developed in more detail in the next section, is that they are referring here not to “refugees” as a broad category, but distinctly to those offered legal protections under the 1951 Refugee Convention and its 1967 Protocol—as I argue in Chapter 3, the term “refugee” was considerably more fluid prior to the Convention. Forced migration exists as a term of policy and academic relevance, not through legal relevance alone. The second, and a point to which I will also return, is that many of these categories are bound together not just through the involuntary nature of the movement but also because they can no longer count on the protection of their own state. This is a critical connection between refugees and conflict-induced IDPs—that, like refugees, IDPs need some other form of protection. But, unlike refugees, IDPs do not have a Convention to offer those protections. This is why the development of the Guiding Principles on Internal Displacement—soft law though it may be—has been a critical issue for establishing the legal rights of IDPs but also ensuring their protection. In this chapter, I begin with the Refugee Convention. It is critical to understand both how the Convention offers protection to refugees, but also its limitations. I then focus on how the Guiding Principles on Internal Displacement acknowledge the existing international rights of IDPs as well as create new rights for them. This includes how its definition addresses both the limitations of the Refugee Convention and many of the issues implicit in the discussion of the forced migrant category, the rights it introduces, and the limits that continue to exist.

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Refugees as an international legal category It is important to start with how refugees are defined within the Refugee Convention: Any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it.8 Thus, the reasons for persecution which lead to receiving refugee status reflect only the “nexus clause” of race, religion, nationality, membership of a particular social group, or political opinion: “Not even all persons in flight from serious human rights abuse and who manage somehow to make their way to an asylum state qualify as refugees under international law.”9 These have been subject to change and reinterpretation—the social group category, for example, has been interpreted by the European Parliament among other bodies to include gender-based violence and persecution based on sexual orientation.10 Further, the Convention defines refugees in an “essentially individualistic” way in the Convention, which seems “to require a case-by-case examination of subjective and objective elements” of each applicant.11 Second, it is focused on state-based persecution instead of other causes such as persecution caused by non-state actors or from situations of generalized violence.12 As UNHCR has noted, “persecution is normally related to action by the authorities of a country” and that while discriminatory or other offensive acts may be committed by other groups, such as the local populace, “they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.”13 Thus, Goodwin-Gill and McAdam note that “too often, the existence of civil conflict is perceived by decision-makers as giving rise to situations of general insecurity that somehow exclude the possibility of persecution” though they add that using such a logic when it does engage or is driven by “one or other Convention ground is not clear, and indeed, is not supported by authority; in our view, it is wrong.”14 These weaknesses are known, and states can provide alternative forms of protection for those asylum seekers who do not qualify as “Convention refugees” but nonetheless need protection, such as leaves to stay on humanitarian grounds or temporary stays against removals.15 Additional complementary protections exist in other bodies of international law.16 The

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Convention against Torture, for example, expressly prohibits the refoulement of a person to any state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”17 Not only is this principal non-derogable, but it is also wider than that of the 1951 Convention, as it permits no exceptions.18 There have been attempts to expand the scope of the refugee definition through regional instruments. The 1969 Organization for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa included “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality” (Article II) in its refugee definition and does not link this specifically to persecution, thereby encompassing problems such as generalized violence, prima facie recognition and the state’s loss of authority.19 However, it has been argued both that this definition is narrower in practice than it appears and that elements of it lack doctrinal clarity.20 The 1984 Cartagena Declaration on Refugees, adopted by 10 Central American governments, also provided an enlarged refugee definition, which included those threatened by “generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.”21 However, it is nonbinding and merely “confirmed customary legal rules for defining refugees.”22 Finally, the Bangkok Principles, adopted by the Asian-African Legal Consultative Committee in 1966 and reaffirmed in 1988, have been signed by the vast majority of Asian states.23 They uphold the principle of non-refoulement. However, they are non-binding and compliance “is neither enforced nor monitored,” leading Davies to conclude they “have had little discernible effect on Asian state practice in relation to refugees.”24 All of this means that the term “refugee” can mean considerably more people than those contained within the Refugee Convention definition. UNHCR in 1997, for example, noted the term included “persons recognized to be outside their country of nationality or habitual residence . . . for reasons that make them of direct concern to UNHCR.” These included not only persons recognized as refugees under the Convention, but also those recognized under the OAU Convention and the Cartagena Declaration, those who are recognized as refugees in accordance with UNHCR’s Statute (referred to as “mandate” refugees), and those who were granted humanitarian statuses.25

Defining internal displacement Rather than the Refugee Convention, therefore, the IDP description in the Guiding Principles is more closely aligned with the OAU Convention and

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these other wider precedents. Its factual description includes any flight “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 humanmade disasters, and who have not crossed an internationally recognized State border.”26 This allows for the inclusion of a range of causes and discards the need for persecution to be a substantial requirement for the descriptive status. As Walter Kälin, the former Representative of the Secretary-General for the Human Rights of Internally Displaced Persons, notes, the IDP definition reflects two elements—“the coercive or otherwise involuntary character of movement; and . . . the fact that such movement takes place within national borders.”27 The requirement for persecution within the Refugee Convention has been critiqued. Phuong notes that “persecution does not capture the essence of refugeehood, namely the failure of the state to protect the citizen’s basic needs.”28 This returns us, as noted earlier, to a key linkage between IDPs and refugees exclusive of the Refugee Convention: the fact that both groups can be seen to lack the protection of their own state. But such practice also links in more closely with how refugees were understood in the interwar period through the League of Nations, which was based on a group or categorical approach: that someone was outside of their country of origin and without the protection of their own government was enough to receive refugee status once that group received status through the League.29 Instead, early definitions of IDP status tended to focus on the issue of coercion. In 1986, the UN Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees suggested that coercion or compulsion was “a decisive factor in differentiating the movements to be addressed by a preventive approach from other mass movements.”30 The UN Secretary-General, in a 1989 report, defined IDPs as persons who have been forced to abandon their homes or their normal economic activities, while remaining inside their countries of origin, because their lives, security or freedom have been threatened by generalized violence, armed conflicts, internal upheavals, or similar events seriously disturbing the Public order.31 This led to the definition used in the Analytical Report of the Secretary General on Internally Displaced Persons, which stated that IDPs were persons who have been forced to flee their homes suddenly or unexpectedly in larger numbers, as a result of armed conflict, internal

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strife, systematic violations of human rights or natural or man-made disasters; and who are within the territory of their own country.32 This definition was discarded in favor of that contained within the Guiding Principles because its language was seen as too restrictive, particularly around the idea that IDPs would need to flee in large numbers to qualify.33 At the same time, the definition is not exclusively focused on the issue of coercion. It explicitly includes “natural or human-made disasters.” Cohen and Bradley have argued that these legal protections are limited to those who have displaced by sudden-onset disasters, such as hurricanes, cyclones, landslides, floods, earthquakes, and tsunamis. This means that people displaced by slow-onset disasters generally do not have legal protections, even though these disasters—such as drought, desertification, rising sea levels, extreme temperatures, deforestation, or land degradation—likely displaced tens of millions of people per year.34 This is a major issue. Since 2008, IDMC has begun tracking natural disaster–induced internal displacement, and estimated that in 2017, 18.8 million were newly displaced by rapid-onset natural disasters.35 In addition, Principle 6 on arbitrary displacement prohibits “displacement in cases of large-scale development projects that are not justified by compelling and over-riding public interests.” As Kälin has argued, this does not prohibit displacement occurring as a result of development projects, but stresses that development cannot be used as an argument to disguise discrimination or any other human rights violation . . . development-related displacement is permissible only when compelling and overriding public interests justify such projects, that is, when the requirements of necessity and proportionality are met.36 But the size of the affected population is unclear. The few global estimates that exist suggest figures from between 15 million per year to an estimated 24.5 million development-induced internal displacees in 2006.37 Therefore, the Principles’ definition is deliberately broad. This is not immune to problems. As Turton has argued, the definition may be “extendable to a huge variety of different situation, groups and individuals and is too vague (note such qualifiers as ‘in particular,’ ‘essentially’ and ‘basically’) and inclusive to serve as a meaningful analytical category for comparative purposes.”38 Because of this problem, states which have passed their own legislation and policies at the domestic level have had a tendency to not adopt the Guiding Principles’ definition, instead using more restrictive versions. This is a point I return to in Chapters 6 through 8.

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Rights within the Guiding Principles The other critical issue with respect to the Guiding Principles is that they are only soft law. When introduced in 1998, they were deliberately submitted “not as a draft convention but rather as an expert text providing guidance.” Kälin, who headed up the legal team who drafted them, provided four reasons why the decision was made to not pursue a Convention, reasons he viewed as still applicable in 2008: First, we realized that treaty-making in the area of human rights at the UN level had become very difficult and time-consuming . . . There was also a fear that negotiating a text that draws as heavily from existing law as the Guiding Principles do, would have given some states an opportunity to renegotiate and weaken existing treaty and customary law. Furthermore, to get a treaty approved would not have ensured wide ratification by states confronted with internal displacement. Finally, we felt that to draft a treaty that like the Guiding Principles combines human rights and humanitarian law was probably premature . . . These reasons still stand today.39 While the Principles are soft law, they use as their foundation existing international human rights law (including the UN Charter, the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights), humanitarian law (including the four Geneva Conventions of 1949 as well as Protocols I and II of 1977) and refugee law (including the Refugee Convention of 1951 and the Refugee Protocol of 1967) to lay out the protections that IDPs are entitled to as citizens of their own state and as human beings. As Kälin has argued: It is possible to cite a multitude of legal provisions for almost every principle . . . Because of that solid foundation, as well as the breadth of rights covered and the wide acceptance the Guiding Principles have found, it can persuasively be argued that they are the minimum international standard for the protection of internally displaced persons.40 At the same time, the initial Compilation and Legal Analysis (1996) undertaken by Deng had noted that grey areas and gaps existed. Two of these gaps—arbitrary displacement and forced return—are discussed further ahead. But what this means is that the Guiding Principles as a whole do extend existing international law.

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At the core of the Guiding Principles is the need to establish equality between IDPs and other citizens of their own country.41 As the Compilation had noted: Internally displaced persons are entitled to enjoy, in full equality, the same rights and freedoms. However, experience has shown that such persons, in practice, rarely enjoy such rights and freedoms because displacement, by its very nature, generally entails deprivations of multiple rights.42 Thus, Principle 1 establishes a non-discrimination clause, noting IDPs shall enjoy, in full equality, the same rights and freedoms under international and domestic law as do other persons in their country. They shall not be discriminated against in the enjoyment of any rights and freedoms on the ground that they are internally displaced. Principles 10 to 23 then recognize specific rights that IDPs have. These include rights against arbitrary deprivation of life; to dignity and physical, mental, and moral integrity; to liberty and security of persons; against forced recruitment; to liberty of movement and to seek asylum; to knowing the whereabouts of missing relatives; to family life; to an adequate standard of living; to medical care; to recognition as a person before the law; to not be arbitrarily deprived of property and possessions; to freedom of thought, employment, association, political participation, and communication, and to education. The Principles also establish protections for specific designated groups. Principle 9 establishes that “states are under a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands.” The Principles also provide specific protections to women against gender-specific violence and health needs, to persons with disabilities, to elderly persons, and to children who have rights against being used for forced labor and military recruitment and the right to receive education. The Guiding Principles also establish a set of responsibilities toward IDPs on the part of the state and other actors. Principle 2 notes that the Principles “shall be observed by all authorities, groups and persons irrespective of their legal status and applied without any adverse distinction.” Principle 5 establishes that national authorities and international actors are expected to respect their obligations under international law to prevent and avoid conditions which might lead to displacement. Principle 7 reiterates this, noting that national authorities should seek to avoid displacement, but where no alternatives exist, “all measures shall be taken to minimize displacement

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and its adverse effects.” The authorities are also expected to comply with a series of guarantees in such cases. These include the free and informed consent of those to be displaced and by competent legal authorities following a specific decision by a state authority empowered to take such a decision. The displaced shall also have a right to an effective remedy including the review off any decision by appropriate judicial authorities. Principle 3 establishes that “national authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction.” This is an important issue in two senses. First, as noted in the introduction, IDP protection reflects more general notions of civilian protection rooted in international law; however, it is not more specifically defined within the Principles. Hence, state responsibility to provide this protection and assistance needs to be understood in light of the other Principles. The second issue is that this Principle reflects the “generally recognized principle of sovereignty.”43 But the Principles modify this provision in two ways. First, Principle 3(2) establishes that IDPs “have the right to request and to receive protection and humanitarian assistance from these authorities.” Second, Principle 25 establishes that international humanitarian organizations can offer assistance to the state: “Consent thereto shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance.” Authorities are expected to “grant and facilitate the free passage of humanitarian assistance and grant persons engaged in the provision of such assistance rapid and unimpeded access to the internally displaced.” In turn, however, these organizations are expected to “give due regard to the protection needs and human rights of internally displaced persons and take appropriate measures in this regard.” Principles 28 to 30 relate to return, resettlement, and reintegration. Competent authorities have the primary duty to establish conditions that allow IDPs to return home voluntarily or to resettle or reintegrate elsewhere. Here, the Principles mimic the three primary durable solutions for refugees—voluntary return, integration into a host state, or resettlement to a third state.44 Following this process, IDPs shall not be discriminated against, and the authorities have the responsibility to assist IDPs in recovering to the extent possible their property and possessions, or otherwise assist them in obtaining compensation or other form of just reparation. The right to voluntarily return is an area in which the Principles have extended international law. Beyond the previous provisions, Principle 15 establishes that internally displaced persons have (a) the right to seek safety in another part of the country . . . and (d) the right to be protected against forcible

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return to or resettlement in any place where their life, safety, liberty or health would be at risk. Kälin has argued that this principle is well established “in the refugee law principle of non-refoulement, and in major human rights protections relating to torture and the deportation of aliens.” While it is novel as applied to IDPs, he argues that states bear responsibility for violations of the nonrefoulement principle in refugee law and for forcibly returning aliens to situations of danger and that similar reasoning can be applied to IDPs. Therefore, “it is clear that states bear an affirmative duty to insure internally displaced persons are not compelled to return to or be resettled in places where their lives or liberty are at risk.”45 The Guiding Principles, however, do not establish other grounds for when displacement ends. For refugees, the 1951 Refugee Convention includes in Article 1 C a set of cessation clauses. The first four clauses establish that refugee status ceases when the refugee themselves change their situation, including the voluntary reavailment of national protection, voluntarily re-acquisition of nationality, the acquisition of a new nationality, or their voluntary reestablishment in the country where persecution was feared. The last two clauses reflect changes in the refugee’s country of origin, which mean that international protection is no longer justified.46 These latter clauses require a formal decision by either UNHCR or the country of asylum. It can be done on an either an individual or group basis, but the refugee must be able to challenge the decision, and they can continue to claim status if they have compelling reasons arising out of previous persecution, such as if they had been subject to atrocious forms of persecution. The burden of proof lies on UNHCR or the state of refuge, rather than the refugee.47 One study suggests that cessation clauses had only been invoked by UNHCR some 21 times between 1973 and 1999, and that they are little used by states.48 By contrast, the Guiding Principles are silent on this issue other than noting in Principle 6(3) that “displacement shall last no longer than required by circumstances.” Some commentators have suggested that a cessation clause should be added for situations in which the need for protection and assistance to IDPs has ceased.49 In an effort to respond to this issue, in 2007, the Brookings-Bern Project on Internal Displacement introduced a framework for durable solutions which followed the Guiding Principles’ formulation of three forms of durable solutions. It notes that “displacement ends when one of these durable solutions occurs and IDPs no longer have needs specifically related to their displacement.”50 In order to do so, “an analysis of the individual’s access to rights needs to take place for each

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situation,” an analysis which will include both subjective and objective elements.51 The report, therefore, proposes a two-step process. The first step sees IDPs provided with information and allowed to actively participate in the process to enable their voluntary decision to return, resettle, or locally integrate. Following this decision, the second step lasts until IDPs are sure of their safety, of their rights and non-discrimination, and after they have received reintegration support.52 Unfortunately, Bradley and Sherwood report that many practitioners “remain unaware of this standard” and those who are familiar with it find it to be both complex and setting a high bar that is difficult to reach.53 Internal displacement as an international crime Finally, there is one last significant difference between the Guiding Principles and the Refugee Convention: the way they handle the obligations of states toward IDPs and refugees, respectively. The Refugee Convention details the receiving state’s obligations toward refugees. It does not, and nor was it intended to, “play any positive obligation on governments to refrain from displacing individuals within their borders, or to apprehend those who commit forcible displacement within their borders.”54 There are suggestions that states do accept some form of limitation on their behavior. Goodwin-Gill and McAdam, for example, conclude that the practice of states “appears to permit the conclusion that States are bound by a general principle not to create refugee outflows and to cooperate with other States in the resolution of such problems as emerge.”55 By contrast, the Guiding Principles make a clear duty to prevent arbitrary displacement explicit. Principle 6 establishes 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 is designed to make explicit “what is now only implicit in international law,” with the exception of humanitarian law and in the law relating to indigenous people.56 The Principles also provide “an illustrative and non-exhaustive list of situations in which displacement would be arbitrary.”57 These include: 1

2 3

When it is based on policies of apartheid, “ethnic cleansing” or similar practices aimed at or resulting in alteration of the ethnic, religious or racial composition of the affected population; In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand; In cases of large-scale development projects that are not justified by compelling and over-riding public interests;

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In cases of disasters, unless the safety and health of those affected requires their evacuation; and When it is used as a collective punishment.58

5

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Within international human rights law, a general prohibition against forced displacement is clear from the Universal Declaration of Human Rights, which establishes that “everyone has a right to freedom of movement and residence within the borders of each state” and the right to leave any country and to return to their own country as well as a right to seek asylum from persecution.59 The International Covenant on Civil and Political Rights (ICCPR) affirms the freedom of movement and residence within a country and to leave any country.60 However, it does establish that these rights can be limited to “protect national security, public order (ordre public), public health or morals or the rights and freedoms of others.”61 The Convention on the Elimination of All Forms of Racial Discrimination (CERD) also establishes a right of freedom of movement and residence within the borders of a state.62 The Genocide Convention explicitly establishes that the forcible transfer of children from one group to another and that acts which are “deliberately inflicting on the groups conditions of life calculated to bring about its physical destruction in whole or in part” both constitute genocide.63 This has led some legal commentators to suggest that forms of forcible displacement used in such a way could constitute genocide; however, it is unclear how wide this category may be.64 International humanitarian law also prohibits a number of forms of displacement, including the “forced displacement of civilians and subsequent resettlement of the occupying power’s own population in occupied territory,”65 including individual or mass forcible transfers as well as deportations of protected persons to the territory of the occupying power or to another country.66 Article 17 of the Additional Protocol II, which deals with non-international armed conflicts, also provides that “civilians shall not be compelled to leave their own territory for reasons connected with the conflict.”67 What specific protections are warranted, however, is unclear, with Jacques noting that “diverging interpretations abound.”68 The International Committee of the Red Cross has argued that these are now customary international legal protections unless “the security of the civilians involved or imperative military reasons so demand.”69 This has been reinforced with the development of international criminal law. Ethnic cleansing has not been defined as an international crime in law in its own right.70 However, actions which constitute forcible transfers within a state’s territory can qualify as both war crimes and crimes against humanity depending on the circumstances. The Statute of the International

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Criminal Tribunal for the former Yugoslavia provided that the International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: . . . (d) deportation . . . (h) persecutions on political, racial and religious grounds (i) other inhumane acts.71 Thus, the 1999 indictment against Slobodan Milosevic included the unlawful deportation and forcible transfer of thousands of Kosovo Albanians from their homes in Kosovo involved well-planned and coordinated efforts by the leaders of the FRY and Serbia, and forces of the FRY and Serbia, all acting in concert.72 The Rome Statute of the International Criminal Court includes “deportation or forcible transfer of population” as a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”73 The Rome Statute defines deportation or forcible transfer as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”74 This is a broad interpretation. There is no requirement that armed conflict needs to be present, nor, except with respect to the crime of persecution, that the crime requires a discriminatory motive. For it to be widespread requires it to be a large-scale action involving a substantial number of victims, while for it to be systematic requires a high degree of orchestration and planning.75 Therefore, beyond the arbitrary displacement principle, certain forms of forcible transfers leading to internal displacement do constitute international crimes.

Bringing the Guiding Principles into regional hard law Internal displacement has been widely recognized by regional organizations, and a number of regional organizations quickly recognized and made use of the Guiding Principles, including the Inter-American Commission on Human Rights and the Organization of American States, the Organization for Security and Cooperation in Europe, the Economic Community of West African States, and the Parliamentary Assembly of the Council of Europe.76 In 2006, the Council of Europe issued a recommendation to its member states concerning IDPs in which the Council not only stressed

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“its commitment to the spirit and provisions of the United Nations guiding principles and its willingness to implement them in the member states’ national legislation and policy” but also noted that “arbitrary displacement of persons from their homes or place of habitual residence is prohibited.”77 And the possibility that regional measures could be a way to provide IDPs with legal protection has been widely recognized. Most notably, as part of the consultative process prior to the World Humanitarian Summit in 2016, there was a call to address gaps in IDP protection by introducing new regional instruments or ensuring their implementation.78 But it was in Africa that the Principles have been most fully advanced, with first the Great Lakes Conference and then the African Union taking steps to bring the Principles into regional law. The Great Lakes Protocol79 applies to the 12 member states of the Conference. The Protocol uses the IDP definition from the Guiding Principles and “member states undertake to prevent arbitrary displacement and to eliminate the root causes of displacement.”80 The signatories accept that “they bear the primary responsibility for the protection of the physical and material safety of internally displaced persons during flight, in places of displacement, and upon return, or resettlement elsewhere within the territory of the State.” They also commit to establishing and designating government organs to coordinate protection and assistance for IDPs and to “enact national legislation to domesticate the Guiding Principles fully”;81 as Kälin has noted, by making this an obligation, the Protocol’s drafters have gone a step further than the UN: “This is very promising way to build consensus on the need to legally protect IDPs and on the content of such protection bottom-up; it could serve as an example for other regions.”82 However, Kälin goes on to note that implementation of the Protocol is one of its key challenges. This has been an issue. Of the eight signatories which presently have internally displaced populations or who have had them in the past, only four have introduced policies or legislation at the domestic level, while two have policies or laws in draft form.83 The Kampala Convention reflects a similar expansion of regional rights to the internally displaced. The Convention acknowledges explicitly their inherent rights as laid out in the Guiding Principles and introduces a range of obligations on its State parties to refrain from arbitrary displacement and to abide by their responsibilities under human rights and humanitarian law. This is an important step, as the Kampala Convention adopts wholesale the definition of internal displacement first provided in the Guiding Principles.84 Further, it applies to non-state armed groups, and notes that “members of armed groups shall be held criminally responsible for their acts which violate the rights of internally displaced persons under international law and national law.”85

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The Convention also reflects the Guiding Principles’ prohibition against arbitrary displacement. It establishes that “all persons have a right to be protected against arbitrary displacement,” which is defined as including eight prohibited categories. The first is displacement based on policies of racial discrimination or other similar practices. The second is displacement in “situations of armed conflict unless the security of the civilians involved or imperative military reasons so demand, in accordance with international humanitarian law.”86 Similar prohibitions are established against intentional displacement as a method of warfare, displacement caused by generalized violence, as a result of harmful practices, non-required forced evacuations during natural or human-made disasters, displacement as collective punishment, and any act of comparable gravity.87 A separate clause reinforces that “State Parties shall declare as offences punishable by law acts of arbitrary displacement that amount to genocide, war crimes or crimes against humanity.”88 The Convention also establishes that state parties have an obligation to protect the rights of IDPs by refraining from and prevention “genocide, crimes against humanity, war crimes and other violations of international humanitarian law against internally displaced persons.”89 And the Convention introduces a remedies clause, establishing that “State Parties shall provide persons affected by displacement with effective remedies” including compensation and reparations frameworks at the domestic level “in accordance with international standards.”90 The Kampala Convention also enshrines elements of the Responsibility to Protect. It only notes the R2P explicitly in its preamble, with state parties “affirming our primary responsibility and commitment to respect, protect and fulfill the rights to which internally displaced persons are entitled, without discrimination of any kind.”91 And the Convention “confirms that the AU’s powers of intervention apply to internally displaced persons.”92 It reiterates Article 4(h) of the African Union’s Constitutive Act, noting the “African Union shall have the right to intervene in a Member State . . . in respect of grave circumstances, namely: war crimes, genocide, and crimes again humanity.”93 As Omorogbe notes: It follows that where there are internally displaced persons, Article 8 of the Kampala Convention provides the AU with a right to intervene across the range of circumstances covered by the “responsibility to protect,” including cases of armed conflict and gross violations of international criminal law.94 The Convention entered into force in 2012 and has been ratified by 27 states and an additional 13 states have signed it.95

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The Convention introduces strong mechanisms to monitor implementation and compliance. The first of these is an agreement to establish a Conference of State Parties which will “enhance their capacity for cooperation and mutual support” and “shall be convened regularly and facilitated by the African Union.”96 However, the mandate of the Conference is left unclear, leading Kidane to suggest that “contracting states obviously did not want to create a robust enforcement mechanism” and that they could have created an independent agency to monitor the Convention had they wished to do so.97 It should be noted, however, that creating such an agency would have entailed significant costs, and it would also be variant from both international practice—where there is no single-purpose IDP body—and also with past African practice around the OAU Convention. After a long period of non-existence,98 the Conference of State Parties finally held its first meeting in April 2017 and has now been formally constituted on an ongoing basis. The State Parties also adopted a five-year Harare plan of action designed to establish a policy framework “for the prevention, protection of and assistance to internally displaced persons . . . at national level” and to strength regional and national measures to both prevent and eliminate the root causes of internal displacement and to improve durable solutions. The plan of action also sees promoting the obligations and responsibilities of state parties, as well as other actors including armed groups and civil society organizations, as a key objective.99 While UNHCR welcomed the meeting, it also cautioned that the State Parties needed to “take extra steps in putting in place national mechanism [sic] and policies for its implementation.”100 There are also other potential enforcement mechanisms within the Kampala Convention. It requires that state parties indicate any legislative and other measures when presenting their reports under the Article 62 process of the African Charter on Human and Peoples’ Rights. At present, however, this process is poorly upheld. A number of countries have either never submitted a report or are decades behind on their reporting responsibilities. Of the 23 periodic reports submitted since the Kampala Convention came into force, only 11, or less than half, even mention IDPs. Nine, however, do point to at least some forms of concrete legislative and policy changes toward IDPs (these specific laws and policies are discussed in more depth in Chapters 6 through 8).101 As more states contribute to this process, this will provide a good avenue for monitoring how the Kampala Convention is being implemented at the domestic level. The Convention also establishes that “any dispute or differences arising between the States Parties with regard to the interpretation or application of this Convention” shall be settled amicably, but in the event of a failure to settle, “either State may refer the dispute to the African Court of Justice and

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Human Rights” or to the Conference of States Parties “which will decide by consensus or, failing which, by a two-third (2/3) majority.”102 Hence, it is entirely possible (if unlikely) for a State Party to refer another State Party to the African Court for a failure to either implement or abide by the Convention. Finally, as noted earlier, the Convention establishes a clear responsibility on its signatories to introduce domestic legislation. And yet, there has been no domestic acceleration of implementation efforts—in fact, these processes seem to have almost stopped in Africa since the Convention was negotiated, with only one new piece of national legislation (that of Kenya) and three new policy frameworks (those of Somalia, Sudan, and Zambia) introduced since 2009. However, this may reflect the fact that these processes are taking longer at the domestic level since the Kampala Convention was introduced—the Central African Republic, the Democratic Republic of Congo, and Nigeria each have policies in draft form which have suffered from delayed adoption over a number of years. The Convention should provide an opening to domestic and international actors to pressure governments to conform to the legislation; thus, it is surprising that—as yet, at least— there has been no clear regional shift at the domestic level. At this stage, therefore, it is easier to discuss the Convention as having anticipatory enforcement mechanisms, rather than effective mechanisms. But it is important to note that these do reflect clear obligations that state parties have agreed to: to implement domestic legislation, to report periodically on that implementation, and to meet regularly to monitor and review implementation. The AU Commission played an important role in getting the Convention ratified, including formulating a clear Plan of Action and a subsequent Ministerial-level meeting.103 And the AU’s Commission on International Law has developed a draft model law for states to use in their own domestication purposes.104 Beyond the AU itself, a range of actors—including UNHCR and the Internal Displacement Monitoring Center (IDMC) have welcomed the Convention, and IDMC has undertaken domestic-level training programs on it.105 However, it is also important that states who are party to the Convention are encouraged and assisted to also implement these other measures.

Conclusion In this chapter, I have examined the role played by the Guiding Principles on Internal Displacement, including in establishing a clear IDP definition and list of rights for IDPs as well as responsibilities for both states and international actors. I have also touched on the Guiding Principles link with analogous refugee law—expanding on the Refugee Convention’s

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legal definition—and with human rights, humanitarian, and international criminal law to build protections for IDPs against arbitrary displacement, especially forcible transfers. Beyond the Principles themselves, it is also important to note the regional dissemination process which has seen them brought into hard law within the African context, even if this process remains in its early days. But beyond the Principles, I have also introduced some of the key questions around internal displacement today. These include their linkages with refugees and with the wider forced migrant category not in international law, but in academic discourse. Equally, the Principles include not only those IDPs displaced by conflict—the focus of this book—but also those displaced by sudden-onset natural disasters and some forms of development-induced displacement. Hence, the definition of IDPs is broad and can incorporate a number of contemporary concerns include climate change. But why does this link and tension with refugees exist, and why were IDPs recognized so much later than refugees? This is the theme of the next chapter.

Notes 1 Elizabeth Colson, “Forced Migration and the Anthropological Response,” Journal of Refugee Studies 16, no. 1 (2003). 2 David Turton, Refugees, Forced Resettlers and “Other Forced Migrants”: Towards a Unitary Study of Forced Migration (Geneva, Switzerland: UNHCR, 2003), 1–2. 3 Alexander Betts, “Survival Migration: A New Protection Framework,” Global Governance 16, no. 3 (2010): 362; Betts, Survival Migration. 4 Michael Barutciski, “Tensions between the Refugee Concept and the IDP Debate,” Forced Migration Review 3 (1998). 5 Ninette Kelley, “Internal Flight/Relocation/Protection Alternative: Is It Reasonable?,” International Journal of Refugee Law 14, no. 1 (2002). 6 Orchard, A Right to Flee. 7 James C. Hathaway, “Forced Migration Studies: Could We Agree Just to ‘Date’?,” Journal of Refugee Studies 20, no. 3 (2007). 8 United Nations, Convention Relating to the Status of Refugees, 28 July 1951, Art. 1 A.(2). 9 James C. Hathaway, “The Causal Nexus in International Refugee Law,” Michigan Journal of International Law 23 no. 2 (2001): 207. 10 Susan F. Martin, “Gender and the Evolving Refugee Regime,” Refugee Survey Quarterly 29, no. 2 (2010). 11 Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd ed. (Oxford: Oxford University Press, 2007), 23. They note this is not the case. See also Jean-Francois Durieux and Jane McAdam, “Non-Refoulement through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies,” International Journal of Refugee Law 16, no. 1 (2004): 9, who note that to assert “the Convention does not apply in cases

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13 14 15

16 17 18

19

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of mass influx is tantamount to saying that the individual does not exist in a group.” Jerzy Sztucki, “Who Is a Refugee? The Convention Definition: Universal or Obsolete?,” in Refugee Rights and Realities: Evolving International Concepts and Regimes, ed. Frances Nicholson and Patrick M. Twomey (Cambridge: Cambridge University Press, 1999), 58; UNHCR, Summary Conclusions on the Interpretation of the Extended Definition in the 1984 Cartegena Declaration (Geneva: UNHCR, 2013), 2. However, a range of forms of generalized violence can amount to persecution under the 1951 Convention, as can the resulting collapse of government and political institutions. In the event that persecution is undertaken by non-state actors, “it is necessary to review the extent to which the state is able and/or willing to provide protection against persecution” Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence under Article 1a(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees and the Regional Refugee Definitions (Geneva: UNHCR, 2016), 5, 7. UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva: UNHCR, 2011), 15. Goodwin-Gill and McAdam, The Refugee in International Law, 126–8. Karen Duke, Rosemary Sales, and Jeanne Gregory, “Refugee Resettlement in Europe,” in Refugees, Citizenship and Social Policy in Europe, ed. Alice Bloch and Carl Levy (Houndmills: Palgrave, 1999), 106; Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), 8. Jane McAdam, Complementary Protection in International Refugee Law (Oxford: Oxford University Press, 2007). United Nations, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” 10 Dec. 1984, Art. 3. Goodwin-Gill and McAdam, The Refugee in International Law, 301; Brian Gorlick, “The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees,” International Journal of Refugee Law 11, no. 3 (1999). Organization of African Unity (OAU), “Convention Governing the Specific Aspects of Refugee Problems in Africa,” 10 Sept. 1969, (Article II); see also Eduardo Arboleda, “Refugee Definition in Africa and Latin America: The Lessons of Pragmatism,” International Journal of Refugee Law 3, no. 2 (1991): 194. Marina Sharpe, “The 1969 African Refugee Convention: Innovations, Misconceptions, and Omissions,” McGill Law Journal 58, no. 1 (2012); Jeff Crisp and Esther Kiragu, Refugee Protection and International Migration: A Review of UNHCR’s Role in Malawi, Mozambique and South Africa (Geneva: UNHCR: 2010), 21. Colloquium on the International Protection of Refugees in Central America, Cartagena Declaration on Refugees, 19–22 Nov. 1984, Art 1. Arboleda, “Refugee Definition in Africa and Latin America,” 187. Asian-African Legal Consultative Organization, Final Text of the AALCO’s 1966 Bangkok Principles on Status and Treatment of Refugees, AALCO 40th session, New Delhi, 24 Jun 2001, http://www.refworld.org/docid/3de5f2d52. html.

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24 Sara E. Davies, Legitimising Rejection: International Refugee Law in Southeast Asia (Leiden: Brill, 2008), 3–4. 25 UNHCR, “Populations of Concern to UNHCR: A Statistical Overview,” 1996, 1. 26 Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement, 1. 27 Kälin, Guiding Principles on Internal Displacement: Annotations, 3. 28 Catherine Phuong, The International Protection of Internally Displaced Persons (Cambridge: Cambridge University Press, 2004), 21. 29 Goodwin-Gill and McAdam, The Refugee in International Law, 16; Aga Khan Sadruddin, “Lectures by Sadruddin Aga Khan on Legal Problems Relating to Refugees and Displaced Persons Given at the Hague Academy of International Law,” 1976, http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo: 3356, 4; Paul Weis, “The International Protection of Refugees,” The American Journal of International Law 48, no. 2 (1954): 194. 30 UN Doc. A/41/324, 13 May 1986, Annex, para 26. 31 UNGA, “International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa: Report of the Secretary-General,” A/ 44/520, 28 Sept. 1989, 16. 32 United Nations, “Analytical Report of the Secretary General on Internally Displaced Persons,” E/CN.4/1992/23, 5. 33 Weiss and Korn, Internal Displacement, 63. 34 Roberta Cohen and Megan Bradley, “Disasters and Displacement: Gaps in Protection,” Journal of International Humanitarian Legal Studies 1, no. 1 (2010); Christopher McDowell and Gareth Morrell, Displacement Beyond Conflict: Challenges for the 21st Century (New York: Berghahn Books, 2010). 35 IDMC, Global Report on Internal Displacement 2016 (Geneva: Internal Displacement Monitoring Centre, 2016), 31, 38; IDMC, Global Report on Internal Displacement 2018, 7. 36 Kälin, Guiding Principles on Internal Displacement: Annotations, 17. 37 Peter Penz, Jay Drydyk, and Pablo S Bose, Displacement by Development: Ethics, Rights and Responsibilities (Cambridge: Cambridge University Press, 2011), 3. 38 Turton, Refugees, Forced Resettlers and “Other Forced Migrants, 11. 39 Walter Kälin, “Guiding Principles on Internal Displacement: The Way Ahead” Proceedings of the Annual Meeting, American Society of International Law 102, (2008): 199; Roberta Cohen, “Developing an International System for Internally Displaced Persons,” International Studies Perspectives 7, no. 2 (2006): 92. 40 Kälin, “The Guiding Principles on Internal Displacement as International Minimum Standard and Protection Tool,” 29–30. 41 For further details on the specific legal basis of each of these rights, see Kälin, Guiding Principles on Internal Displacement: Annotations. 42 ECOSOC, “Internally Displaced Persons: Compilation and Analysis of Legal Norms, Part I,” E/CN.4/1996/52/Add.2, 5 Dec. 1995, para 8. 43 Kälin, Guiding Principles on Internal Displacement: Annotations, 19. 44 While the Guiding Principles does not use the language of “durable solutions,” the Kampala Convention does explicitly note that its first objective is to “provide for durable solutions.” See Megan Bradley and Angela Sherwood,

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47 48 49 50 51 52 53 54

55 56 57 58 59 60 61 62 63 64

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“Addressing and Resolving Internal Displacement: Reflections on a Soft Law ‘Success Story’,” in Tracing the Roles of Soft Law in Human Rights, ed. T. Gammeltoft-Hansen, S. Lagoutte, and J. Cerone (Oxford: Oxford University Press, 2016), 162. Kälin, “Guiding Principles on Internal Displacement: Annotations,” 37–9. This view is disputed. Catherine Phuong argues that this principle goes beyond existing international law, but that “this bold and extensive reinterpretation of the law . . . fills some of the gaps which exist in the current legal framework” Phuong, The International Protection of Internally Displaced Persons, 61. 1951 Refugee Convention Art. 1 (C) 1–6. See also UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 23–4. Kate Jastram and Shelley Cavalieri, “Human Rights in Refugee Tribunals,” Refugee Survey Quarterly 24, no. 2 (2005). Joan Fitzpatrick and Rafael Bonoan, “Cessation of Refugee Protection,” in Refugee Protection in International Law, ed. Erika Feller, Volker Turk, and Frances Nicholson (Cambridge: Cambridge University Press, 2003), 501. Geissler, “The International Protection of Internally Displaced Persons,” 456. Brookings Institution-University of Bern Project on Internal Displacement, “When Displacement Ends: A Framework for Durable Solutions,” June 2007, 10. Ibid., 10–11. Ibid., 12–17. Bradley and Sherwood, “Addressing and Resolving Internal Displacement,” 164. Grant Dawson and Sonia Farber, Forcible Displacement Throughout the Ages: Towards an International Convention for the Prevention and Punishment of the Crime of Forcible Displacement (Leiden: Martinus Nijhoff Publishers, 2012), 59. Goodwin-Gill and McAdam, The Refugee in International Law, 2–3. Compilation Part II; Kälin, Guiding Principles on Internal Displacement: Annotations, 14–15. Ibid., 16. Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement, Principle 6. United Nations General Assembly, “Universal Declaration of Human Rights,” Art. 13(1), (2), 14(1), 10 Dec. 1948. United Nations, “International Covenant on Civil and Political Rights,” Art. 12, 16 Dec. 1966. Ibid., Art. 12(3). United Nations, “International Convention on the Elimination of All Forms of Racial Discrimination,” Art. 5, 21 Dec. 1965. United Nations, “Convention on the Prevention and Punishment of the Crime of Genocide,” Art. 2(e), 9 Dec. 1948. Dawson and Farber, Forcible Displacement Throughout the Ages, 57; Machteld Boot, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court(Cambridge: Intersentia nv, 2002), 451. Mélanie Jacques, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law (Cambridge:

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71 72 73 74 75 76 77 78 79 80 81 82

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Cambridge University Press, 2012), 79; Jean-Marie Henckaerts, Louise Doswald-Beck, and Carolin Alvermann, Customary International Humanitarian Law: Volume 1, Rules (Cambridge: Cambridge University Press, 2005), 458–60. International Committee of the Red Cross, “Geneva Convention Relative to the Protection of Civilian Persons in Time of War,” Art. 49, 12 Aug. 1949. International Committee of the Red Cross, “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),” Art. 17, 8 June 1977. Jacques, Armed Conflict and Displacement, 79. Henckaerts, Doswald-Beck, and Alvermann, Customary International Humanitarian Law: Volume 1, Rules, 1, 457. A factual definition was provided by a Commission of Experts established by the Security Council in 1994, establishing ethnic cleansing as “a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.” UNSC, “Letter Dated 24 May 1994 from the Secretary-General to the President of the Security Council,” S/1994/ 674, 27 May 1994, 33. UN, “Updated Statute of the International Criminal Tribunal for the Former Yugoslavia,” Sept. 2009, www.icty.org/x/file/Legal%20Library/Statute/statute_ sept09_en.pdf, Art. 5. International Criminal Tribunal for Former Yugoslavia (Prosecutor v. Milosevic), May 22, 1999 (Indictment No. IT-99-37-I). Rome Statute of the International Criminal Court Art. 7(1). Ibid., Art. 7(1). Darryl Robinson, “Defining ‘Crimes against Humanity’ at the Rome Conference,” American Journal of International Law 93 no. 1 (1999): 45–6. See Roberta Cohen, “The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting,” Global Governance 10, no. 4 (2004); Orchard, “Protection of Internally Displaced Persons.” Council of Europe, “Recommendation Rec (2006)6 of the Committee of Ministers to Member States on Internally Displaced Persons,” 5 Apr. 2006, https:// search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d8265. United Nations, “Restoring Humanity: Synthesis of the Consultation Process for the World Humanitarian Summit,” 2015, 66. “Great Lakes Protocol on Protection and Assistance to Internally Displaced Persons,” 2006. Ibid., Art. 3(1). Ibid., Art. 3(5), 6(1). Walter Kälin, “The Great Lakes Protocol on Internally Displaced Persons: Responses and Challenges” (Speech at the Symposium on International Law in Post Conflict Situations: The Great Lakes Process, London School of Economics: International Humanitarian Law Project, London, 27 Sept. 2007), 4. Phil Orchard, “Regionalizing Protection: AU and ASEAN Responses to Mass Atrocity Crimes against Internally Displaced Persons,” Global Responsibility to Protect 8, no. 2–3 (2016): 311–14. Kampala Convention, Art. 1(k). Ibid., Art. 7(4); Chaloka Beyani, “The Politics of International Law: Transformation of the Guiding Principles on Internal Displacement from Soft Law into

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Hard Law” (Paper presented at the Proceedings of the Annual Meeting of the American Society of International Law, 2008), 198. Kampala Convention, Art. 4(b). Ibid., Art. 4(c-h). Ibid., Art. 4(6). Ibid., Art. 9 1(b). Ibid., Art. 12(1) and (2). It also includes a further clause that a “State Party shall be liable to make reparation . . . when such a State Party refrains from protecting and assisting internally displaced persons in the event of natural disasters.” Ibid., Art. 12(3). Ibid., Preamble. Abede suggests that “the Convention avoided making explicit references to concepts such as ‘humanitarian intervention,’ ‘responsibility to protect,’ and others mainly out of fear that these references will ‘radicalize’ the text making any future adoption of the Convention extremely difficult” Abebe, “The African Union Convention on Internally Displaced Persons,” 57. Eki Yemisi Omorogbe, “The African Union, Responsibility to Protect and the Libyan Crisis,” Netherlands International Law Review 59, no. 2 (2012): 151. Kampala Convention, Art. 8(1). Omorogbe, “The African Union, Responsibility to Protect and the Libyan Crisis,” 151–2. African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) (African Union: Addis Ababa, 2017). Kampala Convention, Art. 14(1–3). Won Kidane, “Managing Forced Displacement by Law in Africa: The Role of the New African Union IDPs Convention,” Vanderbilt Journal of Transnational Law 44, no. 1 (2011): 77. HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani,” A/HRC/26/33, 4 Apr. 2014, 15. AU, “Plan of Action for the Implementation of the Kampala Convention Adopted by Conference of States Parties,” 6 Apr. 2017, www.au.int/web/en/ pressreleases/20170406/plan-action-implementation-kampala-conventionadopted-conference-states. UNHCR, “UNHCR Calls for Robust Implementation of the ‘Historic and Ground Breaking’ Kampala Convention,” 6 Apr. 2017, www.unhcr.org/enau/news/press/2017/4/58ecb4fd4/unhcr-calls-for-robust-implementation-ofthe-historic-and-ground-breaking.html. Article 62 Process Reports are available at: www.achpr.org/states/reports-andconcluding-observations/ Since 2012, 23 reports have been submitted, including from 16 states which have ratified and three states which have signed the Convention. Art. 22(1–2). Marina Sharpe, “Engaging with Refugee Protection? The Organization of African Unity and African Union since 1963,” in New Issues in Refugee Research (Geneva: UNHCR, 2011), 31. African Union Commission on International Law, “Report of the Draft AU Model Law for the Implementation of the African Union Convention for the Protection of and Assistance to Internally Displaced Persons in Africa,

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Annex: The Draft AU Model Law,” AUCIL/Legal/Doc.6 (IX), 27 Nov. 2014, https://au.int/sites/default/files/newsevents/workingdocuments/32304-wdaucil.9th.os_.final_report_adopted_on_model_african_union_law_on_ idps_by_minelik_alemu_getahun_nov_27_2014_eng_0.pdf. 105 See IDMC, “Workshop Report-Domesticating the Kampala Convention: Law and Policy Making,” 30 June–2 July 2014, Monrovia, Liberia, www.internaldisplacement.org/publications/2014/domesticating-the-kampala-conventionlaw-and-policy-making.

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The origins of internal displacement

Defining refugees The Second World War and the displaced persons problem The creation of the Refugee Convention and the omission of the internally displaced UNHCR and the Volksdeutsche problem Conclusions: defining forced migrants

Why did the issue of internal displacement not receive more attention prior to the end of the Cold War? In particular, why was the issue of internal displacement not included within the 1951 Refugee Convention? Internally displaced persons, as I noted in the introduction, was first used as a term by the Allied United Nations Relief and Rehabilitation Administration (UNRRA). But this was a simple shorthand to differentiate those people who had been displaced within their own countries from the much larger category of “displaced persons,” which referred to people who did not fall within the specific interwar refugee Arrangements and Conventions but who had been displaced and left their own country. In fact, by the end of the Second World War, the views of refugee status were quite flexible. This seems to counter the historical record. As noted in the introduction, Eleanor Roosevelt, as a member of the US delegation to the General Assembly at the time of the Refugee Convention negotiations, claimed that “internal refugee situations” were separate problems of a different character, in which no question of protection of the persons concerned was involved . . . but those problems should not be confused with the problem before the General Assembly, namely, the provision of protection for those outside their own countries, who lacked the protection of a Government and who required asylum and status.1

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Goodwin-Gill and McAdam similarly argue that while there were arguments for the inclusion of internal refugees within the Convention— including by the Greek, Indian, and Pakistani governments, which had each approached the General Assembly for help with their own internal refugees situations—“it was the insistence on the absence of legal protection that prevailed.”2 Hathaway suggests that the choice to not include them was made for three practical reasons. The first was the issue of limited international resources at the time, which led to a focus on legal protection and status alone. The second was that including internal refugees might prompt states to shift their responsibilities toward their own populations onto the international community. The third was that any efforts to deal with internal refugees “would constitute an infringement of the national sovereignty of the state within which the refugee resided.”3 As Hathaway concludes, “none of the three factors which dictate the exclusion of internal refugees . . . was so much a matter of conceptual principle, as it was a reflection of the limited reach of international law.”4 And yet, I argue in this chapter for a third alternative: that views of refugee status at the time of the Refugee Convention negotiations remained fluid enough that IDPs could have been included within it. They were not because of a deliberate framing of prior historic precedents by the US government—such as in Roosevelt’s statement—in order to block the inclusion of IDPs. Their core interest was not in blocking internal refugees from being included per se; rather, they felt any expansion of the refugee definition would lead to UNHCR gaining a mandate to provide refugees with assistance, in addition to legal protection. This was a step they were determined to block, favoring instead new organizations outside of the United Nations which they could control: the US Escapee Program and the Intergovernmental Committee for European Migration.5 My claim here is not that internally displaced persons would have been included within the Convention without American pressure; rather, I argue that the US government moved in such a way as to curtail the debate itself by narrowing how refugees were perceived. Their efforts were successful and were instrumental in not only creating the definition of “refugees” contained within the Convention, but also excluding international recognition of the problem of internal displacement for 40 years.

Defining refugees The idea that refugees were outside their own countries and lacked the protection of a government dates back to the first legal definition of a refugee. This was contained in an 1832 French law which defined refugees as “ceux qui résident en France sans la protection de leur gouvernement” (those who

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6

reside in France without the protection of their government). Grahl-Madsen notes that “it would seem that here we have the origin of the notion that refugees are ‘unprotected persons.’”7 Refugee protection throughout the nineteenth century, however, was a domestic affair only, with individual states determining their policies toward only the people who crossed their frontiers, and with no international legal obligations.8 Practices at the international level developed with the dramatic expansion of refugee numbers only following the First World War. The Russian Revolution alone displaced over 1 million people.9 In order to provide these refugees with a form of legal status, Fridthof Nansen, the first League of Nations High Commissioner for Refugees, proposed to issue them with certificates or equivalent identity papers through the League. These “Nansen Passports” were important. They not only granted Russians a legal identity outside of their state, but also marked the beginnings of international refugee law.10 Beyond the 1922 Arrangement’s title,11 however, it did not define the category of persons entitled to receive to receive a certificate under the Arrangement.12 McAdam suggests one explanation for the absence of a definition is that there was an unspoken understanding at the time about what a “refugee” was, such that it was unnecessary to explicitly set out the definitional criteria for refugee status. Rather, with that conception of the refugee in mind, attention could instead be focused on which particular groups of refugees would benefit from the League’s protection and assistance.13 While this is certainly true in general, it did lead to administrative issues for the League. Within a year, the League’s legal section drafted a definition which was circulated to its members in June 1923 “for their information.”14 However, the definition was never incorporated into the Arrangement and was very broad and circular: In principle, however, any refugee originating from territory which formerly belonged to Russia . . . could legally be treated as a Russian refugee for the purposes of the activities of the league High Commissioner, and would be eligible to have an identity certificate issued to him by the government of the country in which he had taken refuge.15 This same form of Arrangement was subsequently extended to Armenian refugees. This extension followed a League of Nations Council resolution in September 1923.16 The next year, the High Commissioner reached the

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conclusion “that effect could best be given to the Council’s recommendation if the interested Governments would adopt a form of certificate for Armenian refugees identical with the certificate established for Russian refugees” and provided a plan for the new Certificate.17 A new Arrangement18 was then negotiated in May 1926, with the goal of regularizing the system of identity certificates by in part finally defining the term “refugees” for both Russians and Armenians. It provided that for the term “refugees,” the focus is on their lack of protection: RUSSIAN:

Any person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the Union of Socialist Soviet Republics and who has not acquired another nationality. ARMENIAN: Any person of Armenian origin formerly a subject of the Ottoman Empire who does not enjoy or who no longer enjoys the protection of the Government of the Turkish Republic and who has not acquired another nationality. A subsequent 1928 Arrangement extended certificates to Assyrian, AssyroChaldaean and assimilated refugees and to Turkish refugees under similar definitions.19 These definitional arrangements continued in the 1933 Convention relating to the International Status of Refugees, which did not propose an encompassing definition of “refugees,” stating only that the “present Convention is applicable to Russian, Armenian and assimilated refugees, as defined by the Arrangements.”20 The League’s practices highlight two important elements. The first element is that the League focused on a group or categorical approach: that someone was outside their country of origin and without the protection of their own government was enough to receive refugee status once that group had been recognized by a League Arrangement.21 Thus, it was group membership—rather than determination of an individual’s status— that qualified that person for refugee status.22 While this system “served merely to delimit the class of refugees to whom the League owed particular obligations,”23 this meant that other groups not included within the Arrangement system who lacked “the protection of their own government” continued to also lack formal international recognition as refugees. In 1926, the League Council did propose to extend protection “to other categories of refugees who, as a consequence of the war, are living under analogous conditions.” Nansen proposed extending a similar status to some seven additional groups, an expansion which was “met with substantial disapproval.”24 The rapporteur who brought this proposal to the League Council, M. Comnene, argued for its rejection. While he noted that the Council

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will no doubt consider that the question whether any particular class of person should or should not be considered as refugees . . . the mere fact that certain classes of persons are without the protection of any national Government is not sufficient to make them refugees; for on that theory all classes of persons without nationality would have to be included.25 Another delegate, M. Scialoja, noted that the Council “must confine its action to helping those whose needs were greatest—those, in fact, whose needs had been caused by political circumstances.”26 Consequently it was only through the limited Arrangement system that groups were formally defined as “refugees” through much of the interwar period. The second element is that once the League provided a definition of “refugees” for the purposes of the Arrangements, it focused exclusively on lack of protection rather than having crossed borders. As Hathaway notes, “The central element in both definitions is for the refugee claimant to have been deprived of the ‘protection’ of his nation of origin and not to have acquired the nationality of any other state.”27 This pattern continued with the 1938 Convention concerning the Status of Refugees Coming from Germany. It noted that “refugees coming from Germany” applied to “persons possessing or having possessed German nationality and not possessing any other nationality who are proved not to enjoy, in law or in fact, the protection of the German Government,” as well as stateless persons who had left Germany. It also did not explicitly state that the refugees (as opposed to the stateless persons) had to have left Germany.28 It was however, the first convention with a clear exclusion clause, noting that “persons who leave Germany for reasons of purely personal convenience are not include [sic] in this definition.”29 Even with this limitation, as Zimmerman notes, this Convention widened the scope of protection “by broadening the refugee definition” to include those who “were still enjoying formal legal protection by Germany by virtue of having retained their German nationality”30 This remained a relatively open definition which did not seek to define the events that had created the refugees (beyond this one exclusion).31 This exclusive focus on the lack of protection as the key element which constituted the definition of “refugees” by the League is not surprising. McAdam notes that “even though the League refugee definitions formally referred only to a lack of juridical (or diplomatic) protection, they reflect older notions of asylum granted on the basis of a disjuncture between the individual and the state.”32 Thus, Hope Simpson, writing in 1938, noted that the essential quality of a refugee was that of a person who “has sought refuge in a territory other than that in which he was formerly

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resident as a result of political events which render his continued residence in his former territory impossible or intolerable.”33 The focus on protection, however, also provided a possible expansion for who could qualify as a “refugee” within this definitional framework. Writing with respect to the situation in Germany, Hope Simpson pointed to how the need for protection could trump the need to be outside of a refugee’s former territory. He noted, “This is a very difficult definition. So far as I can see [the 1938 Convention] covers the people in the concentration camps inside Germany. They do not enjoy in fact the protection of the German Government.”34 These issues proved to be moot, as just seven countries signed this convention and it did not come into force before the outbreak of the Second World War.35 But the 1938 Convention represents an interesting hybrid in two ways. With it, there was a shift away from the League model of category-based refugee definitions, and, for the first time, a growing focus on the individual’s reasons for flight. It also highlighted the issue with defining refugees solely in terms of the lack of protection of their own State. For a domestic legal system, such as that of France in 1832, this standard worked because the refugees were, by definition, already outside their country. At the international level, however, such a standard was unclear, particularly if the individual remained within their own State and had been targeted by it.

The Second World War and the displaced persons problem The Second World War displaced between 40 and 65 million people in Europe, including 17 million within their own national frontiers.36 Millions more were displaced outside Europe, including at least 95 million people in China alone.37 The practice of both the Allied governments and the international organizations they set up differentiated between two categories: refugees, on the one hand, and displaced persons (DPs), on the other. Neither of the two organizations which had responsibilities toward these groups between 1943 and 1947—the Intergovernmental Committee on Refugees (IGCR) or the allied United Nations Relief and Rehabilitation Administration (UNRRA) provide clear definitions of these terms and the use of both shifted significantly over this period. The Allies assumed that refugees would compose only a small percentage of the total displaced population, and that they could be protected by the IGCR. The IGCR had been created in 1938 to negotiate the exit of refugees from Nazi Germany.38 Following the 1943 Bermuda Conference, the Allies extended its mandate to instead protect

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all persons, wherever they may be, who, as the result of events in Europe, have had to leave, or may have to leave, their countries of residence because of the danger to their lives or liberties on account of their race, religion, or political beliefs.39 This allowed the IGCR to protect three groups: the remaining refugees who had received status under the moribund League Arrangement and convention system, refugees from the Spanish Civil War who had never received status under the League, and refugees created by the war who were unwilling to return to their own countries.40 By contrast, it was assumed that DPs constituted the vast majority of the total displaced population and that they would want to repatriate to their homes or home countries.41 Because this was primarily a question of assistance, the Allies assigned the task to a separate wartime organization, UNRRA. UNRRA had the broad mandate to undertake “relief of victims of war in any area under the control of any of the United Nations.”42 Because it was not legally clarified within UNRRA, the term “DP” was ambiguous. Recent works, for example, have suggested that for UNRRA, the term operationally included only “civilians found outside their countries of origin at the end of hostilities.”43 However, following its creation in 1943, UNRRA interpreted the category of DPs broadly. It noted that its services could be offered to “persons found in any areas under the control of any of the United Nations who by reason of war have been displaced from their homes and . . . in securing their repatriation or return.”44 UNRRA’s Subcommittee on DPs clearly felt DPs who remained within their own countries were within their mandate, noting that while UNRRA should in particular assist nationals of the UN to repatriate to their own countries, it “should also assist those nationals of the United Nations who have been displaced within their own (liberated) countries to return to their homes in those countries, if requested to do so by the member government concerned.”45 UNRRA, however, had a limited mandate. Beyond requiring requests from member governments, its operations also required the consent of the Supreme Headquarters Allied Expeditionary Force (SHAEF).46 Neither SHAEF nor the individual Western European governments requested its assistance;47 instead, SHAEF itself repatriated some 3 million DPs by early 1945.48 UNRRA did actively assist DPs within their own countries in Italy and China. In Italy, UNRRA carried out a program to provide direct aid to internally displaced children and mothers.49 In China, the Chinese government authorized UNRRA to assist its IDPs but the Administration found the problem “to be too large to handle, with limited personnel and resources, on the systematic and rational basis originally contemplated.”50

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Instead, UNRRA provided assistance but funneled most of it through the domestic Chinese National Relief and Rehabilitation Administration, which estimated that it assisted slightly more than 1 million people.51 Germany, however, posed another problem. The German population and the Volksdeutsche, ethnic Germans who had fled in the wake of the German retreat along the Eastern Front, were explicitly excluded from UNRRA’s mandate.52 This meant that the Administration was unable to provide aid to, among others, German Jews rescued from the concentration camps. UNRRA’s Council had the power to amend the UNRRA Agreement or take other actions through a simple majority vote.53 Hence, in September 1944, the Council passed a new resolution that UNRRA be authorized to undertake the care and return of persons . . . who have been forced to leave or deported by the enemy from their country because of their race, religion or activities in favor of the United Nations.54 With this extension, the UK Foreign Office noted that this would include “so-called ‘good Germans’ and other ‘good’ enemy subjects on rather a wide scale.”55 UNRRA’s mandate was further extended in 1945 to include “political dissidents as well as post-war political refugees.”56 UNRRA’s mandate was thus steadily expanded to include both refugees and the internally displaced. A December 1945 memorandum explicitly noted that UNRRA was authorized to assist United Nations Nationals “found in liberated United Nations territory having been displaced within their own countries” as well as those not possessing United Nations Nationality, including stateless persons, who were “found in liberated territory and who have been obliged to leave their country or place of origin or former residence by action of the enemy, because of their race, religion or activities in favor of the United Nations.”57 Further, a separate memorandum noted that post-war refugees would also be included “if their internal displacement (i.e. displacement from their homes) occurred during the war. ”58 These expansions led to concerns over the number of IDPs who would now fall under its mandate. As the London office of UNRRA argued, under this mandate expansion, any inhabitant of a liberated area who wishes to leave his country for economic reasons qualifies for UNRRA care on what appears to us the purely fortuitous circumstance of internal displacement [if it occurred during the war]. This leaves the door wide open to political refugees of every kind.59

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In effect, these changes meant that for UNRRA, the DP category became a catch-all to refer to all individuals who did not wish to return to their homes, including those outside their State, but also groups, like the German Jews, who remained in camps and were receiving international assistance in Germany, as well as anyone who had been internally displaced during the war. The creation of the first refugee organization within the UN—the International Refugee Organization (IRO)—dealt directly with this problem. Its Constitution provided clear legal definitions for both refugees and DPs to differentiate the groups. Further, with the IRO’s creation, the other international organizations still operating to provide assistance to refugees and DPs— UNRRA, the IGCR, and the League High Commission for Refugees— were all wound up. Hence, Hathaway notes that, by mid-1947, the IRO Constitution “was the only effective international standard.”60 The refugee definition within the IRO’s Constitution appears clear-cut. It applied to a person who had left their country of nationality or former habitual residence and who had been either a victim of the Nazi or Fascist regimes; Spanish Republicans and other victims of the Falangist regime in Spain, irrespective of whether they had previous international status as refugees; other people considered as refugees before the outbreak of the Second World War; and other people outside their country “unable or unwilling to avail” themselves “of the protection of the Government” of their country.61 “DPs” referred to those who had been deported from or been forced to leave their country of nationality or of former habitual residence, “such as persons who were compelled to undertake forced labor or who were deported for racial, religious or political reasons.”62 There was, however, one additional category of refugees—German and Austrian Jews: The term “refugee” also applies to persons who, having resided in Germany or Austria, and being of Jewish origin or foreigners or stateless persons, were victims of Nazi persecution and were detained in or were obliged to flee from and were subsequently returned to, one of those countries as a result of enemy action, or of war circumstances, and have not yet been firmly resettled therein.63 For the UN Special Committee on Refugees and Displaced Persons, charged with drafting the IRO Constitution, this had been a point of significant debate. The Control Council of Germany had revoked the Nuremberg Laws and other denationalization decrees in August 1945 and had called for the automatic restoration of citizenship to Austrian and German Jews. However, this decision was strongly opposed by Jewish organizations that saw it akin to compulsory “regermanization.” The Special Committee,

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therefore, made the decision to effectively treat the Jews as stateless because they were opposed to reintegration in their countries of former habitual residence.64 Cohen recounts that George Warren, the US delegate, “admitted that an international status for German and Austrian Jews ‘not firmly resettled’ in their own countries created an exceptional precedent. He nonetheless urged the committee to ‘err on the side of generosity and justice.’”65 In the creation of the IRO definition, however, the flexibility of the former UNRRA processes to include “good Germans” and other IDPs disappeared. As Cohen notes, under the IRO, “even a strong anti-Nazi record did not enable refugees of German origin to be recognized as DPs.”66 Further, in a break with earlier practices, neither refugee nor DP status was automatic. Instead, a person became the concern of the organization only if they could be repatriated, or had expressed “valid objections” against being returned on the basis of persecution or fear of persecution for reasons of race, religion, nationality, or political opinion, provided that these were not in conflict with the principles of the UN; objections of a political nature judged by the Organization to be valid; or compelling family reasons, infirmity, or illness.67 Hence, the definitions were generally used only to process cases where the individual was already outside their country; the IRO did not need to consider cases where the individual was internally displaced. Thus, by 1947, the IRO was providing protection and assistance to 704,000 refugees and DPs, and only protection activities to 900,000 refugees, including 550,000 pre-war refugees.68 In effect, UNRRA and the IRO offered two alternative approaches for defining refugees. UNRRA, geared toward the provision of assistance, adopted an expansive view of its mandate and included individuals within and outside their countries of origin under the loose term of “DP.” The IRO, by contrast, adopted a narrow legal view of both refugees and DPs. Hence, it was possible for an IDP of Jewish origin in Germany to claim both DP status under UNRRA and refugee status under the IRO. The IRO, like its predecessors, was created as a temporary organization, with a fixed deadline of 30 June 1950 to end its operations, which was eventually extended to 28 February 1952.69 Left unanswered was the question of how the international community would respond to any remaining DPs and refugees as well as to new refugee flows.

The creation of the Refugee Convention and the omission of the internally displaced By 1949, it was clear to IRO officials that they would not be able to resettle all of the refugees remaining in camps in Germany. Instead, a “hard core”

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of sick, disabled, infirm, and elderly refugees would remain after the organization was wound up. These included Holocaust survivors, who were discriminated against both because of their physical condition and lingering anti-Semitism.70 Further, new flows of refugees, often with unclear legal statuses, were adding to the pressure. Between 1947 and 1951, 14 million refugees were created by the partition of India.71 The creation of the State of Israel in 1948 displaced over 700,000 Palestinians. The Korean War between 1950 and 1953 created 7 million refugees. In each of these cases, the IRO had no mandate to deal with the problem. Instead, the UN General Assembly created separate agencies: the UN Relief and Works Agency (UNRWA) for Palestinian refugees in the Near East, and the UN Korean Reconstruction Agency to provide assistance to the Korean refugees.72 Even in Europe, new flows of refugees continued from the East. By 1951, refugees were entering West Germany at a rate of 15,000 a month. Once the IRO closed its doors, these refugees would no longer receive international assistance, and would have to rely on the West German government and various German voluntary organizations.73 The UN Economic and Social Council (ECOSOC) argued in its 1949 report, A Study of Statelessness, that determining the legal status of stateless persons and establishing permanent international machinery for their protection was necessary while excluding refugees who were not stateless from consideration.74 However, UN Secretary-General Trygve Lie used the report to argue that the status of both “refugees and stateless persons should be determined by means of international conventions.”75 The SecretaryGeneral went on to argue that with respect to both international conventions, no Government will be willing to take the first step in this direction for fear of being the only one to improve the status of stateless persons, thus causing an influx of them into its territory . . . Ratification of a convention in which all these provisions find their natural place gives rise to less difficulty . . . A general convention is a lasting international structure; being open to the accession of States which have not signed it, it encourages governments to associate themselves with the work of their forerunners.76 Thus, in an October 1949 report, the Secretary-General proposed that any new protection service should “concern itself with those refugees who are within the scope of the IRO,” even as his report noted that the IRO definitions had required “elaborate machinery” to process each individual applicant. The Secretary-General proposed no solution to this,

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instead suggesting the issue “should be considered by the General Assembly.”77 Negotiations over both UNHCR and the Refugee Convention occurred over the same time frame and lasted two years. Debates about the drafting of the Convention took place within the General Assembly’s Third Committee and an Ad Hoc Committee created by ECOSOC.78 At the same time, the previously supportive US government no longer wanted a strong UN-based refugee organization and, in particular, wanted to limit costs of providing refugee assistance. As George Warren, a member of the State Department, argued in 1951, “the IRO has cost my Government a tremendous sum of money. The organization was not established to function indefinitely and the time has now come to attempt solutions to the problem through bilateral negotiations.”79 Eleanor Roosevelt similarly emphasized the limits of US generosity and warned against an “increasing tendency to drive the UN into the field of international relief and to use its organs as the source and center of expanding appeals for relief funds.”80 This shift occurred for three reasons. The first was that the US government saw existing refugees in Europe as the responsibility of the Western European governments, which, accustomed since 1945 to have indigent refugees on their territories cared for out of international funds, are now reluctant upon the termination of IRO to resume unilateral care for these persons and hold the view that they should continue to be provided for out of international assistance funds.81 The second reflected a US shift away from the UN toward new programs and organizations, such as the US Escapee Program and the Intergovernmental Committee on Migration (which went on to become the International Organization for Migration), both of which would be used to aid communist refugees to leave Europe.82 In planning for European economic recovery, Will Clayton, the Assistant Secretary of State, noted that “we must avoid getting into another UNRRA. The United States must run this show.”83 At the same time, the State Department knew no further support was forthcoming for UN organizations: “Congress has made it clear that it does not propose to appropriate funds annually hereafter to cover United States contributions to such a fund.”84 Hence, when the negotiations began over UNHCR and the Refugee Convention, the initial US position was focused on limiting the scope of the negotiations to legal protection for refugees. Publicly, the US argued that “the time was not ripe” for creating new machinery because of the many problems involved in determining “suitable continuing machinery.”85 Privately, Secretary of State Dean Acheson noted that the US position was

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that UN activities be “restricted to provision of legal protection with respect to civil status of refugees and DPs who have not acquired citizenship in countries of resettlement,” or the “hard core.” No other functions “such as administration of [international] financial assistance to refugees [were] envisaged.”86 The US government was not concerned at this stage with how refugee status was defined. The State Department’s position paper noted that the General Assembly would consider “eligible persons,” such as refugees, DPs, and stateless persons, who would “be declared to be eligible for the protection.”87 While the United States felt that the IRO definition would be the start of discussions, it noted that the use of that definition would include refugees as well as DPs “possessing the citizenship of a member government of the United Nations, many of whom were brought into Germany as slave laborers during World War II, who have refused repatriation for valid reasons.” The “many of whom” language suggests the United States did not view DPs as people exclusively outside their own state. This was reinforced by a comment in the same position paper that the separate ECOSOC Ad Hoc Committee should be requested to recommend other categories of persons to be declared eligible for protection at a later time. Categories that might be considered for such recombination at an appropriate time might include married women who have become stateless, Volksdeutsche in Austria and Germany . . . The position of the Palestinian refugees remains to be clarified.88 The Volksdeutsche in Germany had explicitly been excluded from both the UNRRA’s and the IRO’s activities. Such a shift, therefore, would represent a significant expansion in the class of people included within the refugee definition. The US position on this issue shifted in response to a new argument, introduced by the Greek government in the General Assembly’s Third Committee. With respect to its own internal refugee problems, the Greek government noted that “the problem of legal protection did not arise in their case, for they were in their own country, but their material distress was causing great anxiety to the Greek government.”89 Hence, the delegate felt that “assistance had to be given to other categories than those provided for in the Constitution of the IRO.”90 In response to this, the Brazilian representative referenced the case not only of Greece, but also of India and Pakistan, and noted would those who voted for the draft resolution under consideration later be able to deny those millions of human beings the same kind

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of assistance they had decided to render to the European refugees in the care of the IRO? . . . The United Nations, however, could not discriminate among refugees.91 The Australian delegate also noted that all [Member States] were aware of the refugee problem in the Near East, in Greece, in India, Pakistan, and other parts of the world. Some of those problems were being handled by special organs of the United Nations, but it might well be that in the future the General Assembly might wish to hand certain residual functions to the High Commissioner.92 By explicitly noting these cases, these governments were pointing to mixed flows of refugees and IDPs. But these states were not suggesting a specific policy response at the time. The Brazilian government, for example, feared that a broad definition could create “a blank check for expenses the exact nature and scope of which were as yet unknown.”93 The Australian delegate suggested the refugee definition “could be expanded as the General Assembly might from time to time determine.”94 The UK government similarly suggested that a definition of refugees needed to be wider “than that contained in the Constitution of IRO” and that it include “all those who might become stateless either de jure or de facto.”95 Its argument was that the new High Commissioner would “concern himself with refugee problems of a broader and more universal nature than those faced by the IRO.”96 The US government moved to argue against such inclusions, with Mrs. Roosevelt noting that it had never been intended that [the resolution] make provision for [what] might be regarded as internal refugee situations . . . All credit was due to the Governments which bore the heavy burdens of those movements of people unilaterally, but those problems should not be confused with the problem before the General Assembly.97 To avoid an expansive definition being passed, the US delegation sought to refer the matter to the ECOSOC Ad Hoc Committee, even while acknowledging that the General Assembly was the only body with the authority to make final decisions.98 Working with the French government, the US delegation then successfully passed a resolution requesting ECOSOC to transmit back to the General Assembly “such recommendations as the Council may deem appropriate regarding the definitions of the term ‘refugee’ to be applied by the High Commissioner.”99

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Why did the US government shift its position? It continued to support the creation of a refugee treaty, with George Warren noting in 1951 that the United States Government had an interest in assisting in every way possible to secure broad adherence to the convention, particularly on the part of European states, because the legal establishment of rights and privileges for refugees under the convention would regularize the position of refugees and thus contribute to peace and order in areas in which large numbers of refugees reside.100 Instead, the US government felt that a broad refugee definition would commit the United Nations to the protection of unknown groups of refugees and divest the Assembly of its freedom of action to deal with new refugee situations which might arise in the future. These new refugee situations . . . can always be added later to the competence of the High Commissioner by Assembly action.101 Internal refugees, “such as those in Germany, Greece, India, Pakistan and in China,” it felt, did not need international protection but would “nevertheless raise serious problems of material assistance” if they were included, and hence would require a significant expansion of UNHCR into assistance operations as well as providing legal protections.102 Going into the Fifth Session of the General Assembly, the US position appeared to have won. While some states—notably the United Kingdom, along with Belgium, Canada, and Turkey—continued to push for a wider definition, it included a clear need for refugees to be outside of their country. In the Ad Hoc Committee on Statelessness and Related Problems, the United Kingdom had proposed that the convention cover “unprotected persons,” meaning, persons who are not nationals of any State; and b) persons who, being outside the territory of the State of which they are nationals, do not enjoy the protection of the State either because that State refuses them protection or because for good reasons (such as, for example, serious apprehension based on reasonable ground, of political, racial or religious persecution in the event of their going to that State) they do not desire the protection of that state.103 However, the issue of protection was still seen as critical, with the key criteria being, as Lord MacDonald, the UK delegate, noted, whether “the potential refugee had no government to which he could turn for protection.”104 He

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argued that the UN had accepted “the protection of all refugees, regardless of their place of origin or the date upon which they became refugees. Hence the High Commissioner’s competence should extend throughout the world and to all refugees.”105 The United States, however, continued to view the UK definition as an ongoing effort to create a wider mandate for UNHCR. Roosevelt responded that movements such as the “transfers of population in Germany, India, Pakistan and Turkey . . . [were] of an entirely different matter, [and] a task far beyond the competency of the High Commissioner’s Office for Refugees.”106 Hence, the proposal was “unacceptable. It would commit the United Nations to undertakings which it was not prepared to assume and which were beyond available resources to fulfill.”107 The United States had also gained an important ally for its position: France. Robert Rochefort, the head of the French delegation, continued to support the idea that international protection was a collective responsibility and that a broad refugee definition was “the very embodiment of the liberalism of the European countries.”108 However, he shifted the French government’s position away from a liberal definition,109 arguing against the UK position and suggesting that “never before had a definition so wide and generous, but also so dangerous for the receiving countries, been put forward for signature by governments.”110 He argued that the extension to “internal refugees, which was implied in the draft, could only encourage the diplomatic conference to adopt some other definition.”111 He also felt that if it were passed, it would extend the High Commissioner’s competence to including a “right to investigate a country’s internal affairs” and bring “his mandate into conflict with international decisions.”112 This was the first time the issue of sovereignty was raised, and appears to have been used here in order to justify the shift in the French government position. While each group continued to support different definitions, they agreed to an informal working party, in which a consensus definition was developed which removed geographic limitations from the refugee definition; this version was then adopted by the General Assembly. These geographic limitations were later reintroduced at the Conference of Plenipotentiaries, which led to the compromise which allowed States to select whether the definition applied to Europe, or Europe and elsewhere, which remained in force until the amendments introduced by the Refugee Protocol.113 Beyond the definition in the Convention, language was also introduced in UNHCR’s Statute to exclude internal refugees who received protection from their state: the High Commissioner’s competence did not extend to a person “recognized by the competent authorities of the country in

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which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”114 The 1951 Refugee Convention definition, therefore, reflected a deliberate narrowing by the US government. There was support for a more expansive view which, potentially, could have included internal refugees. The frame the United States chose was also important: that refugees were those who lacked the protection of their own state, and that therefore the internal refugee flows cited represented a different problem. The United States justified this by invoking traditional conceptions of “refugees” linked to both protection and being outside of their own state and hence requiring asylum. Privately, its main concern was not about the definition itself, but rather the necessary role that assistance would play in responding to internal problems. Interestingly, concerns about sovereignty appeared late in this debate, and more to support a shift in position by the French government than as a core concern. The main question that was left unanswered, however, was how would the international community respond to internal refugees who lacked the protection of their own state? In the cases mentioned by states during the debates—including Greece and the Indian partition—this was not so. Yet the case of DPs during the Second World War clearly demonstrated this was a possible issue. And, within a year, it would be raised explicitly by the first UN High Commissioner for Refugees, Gerrit Jan van Heuven Goedhart.

UNHCR and the Volksdeutsche problem A former refugee himself, Goedhart had chaired the General Assembly’s Third Committee discussions on both the Statute and the Convention as a member of the Netherlands’ delegation, and knew the spirit behind each clause.115 As a delegate during the negotiations, he had generally accepted the US position toward UNHCR. However, in a meeting with State Department officials in March 1951, he argued for a different interpretation of the Statute with respect to one particular group: the Volksdeutsche who had been denied refugee status by the West German government and who were “considered illegal entrants . . . He assumed that the Bonn government would not recognize these refugees as having the rights and privileges of German nationality and that, consequently, they would fall under his competence.”116 Here, Goedhart had raised the one issue the US government had carefully avoided during the Refugee Convention negotiations: if refugees can no longer count on the protection of their own governments, would individuals who remained within a State’s territory, but similarly could not count on that government’s protection, not also qualify as refugees?

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The US State Department carefully calibrated a response to Goedhart’s concern. Two weeks later, Secretary of State Dean Acheson noted in a telegram that problems [such as] housing, employment and relief which such internal refugee problems admittedly pose [should] be dealt with in conjunction [of] appropriate overall [national] programs and in no [repeat] no event as projects to be under [the] competence [of the] Office. In his view, the UN should become involved with internal refugees only as an incidental part of an overall response dealing with the overall economy of the concerned country, and only upon the specific request of that country.117 Goedhart, however, continued to raise the issue, including in his first speech to the ECOSOC on 3 September 1951. While he noted the Volksdeutsche were largely outside his mandate, he stated that “if not dealt with in time . . . the problem may become so serious that it may be a threat to international peace and security.” Given the size of the Volksdeutsche population—which he estimated was “made up of 7,600,000 expellees, 1–1/2 million refugees from Eastern Germany and 150,000 IRO refugees”—migration was not a possible solution. Therefore, he suggested “the integration of all the refugees in Germany . . . will require some assistance from the outside,” and potentially an expansion of UNHCR’s mandate.118 This led to a clear response from the US government through a directive to the US delegation to ECOSOC, noting that in the event that the High Commissioner proposes action by the General Assembly looking toward the assumption by the United Nations of responsibility . . . for the problem of German refugees in Germany, the United States Delegate should oppose such action.119 It appears that Goedhart decided to drop the issue, noting in a letter the following February that funding for projects “cannot, however, be designed for groups clearly outside the mandate, such as the Volksdeutsche in Germany. (Volksdeutsche in Austria are within our mandate).”120 This shift may also have occurred due to increased Soviet interest in the matter. That same month, in the General Assembly, the Soviet delegate noted that “the concept of ‘refugees’ . . . had been infinitely extended, so as to include in particular the Volksdeutsche living in Germany and Austria. It would seem, therefore, that Germans living in their own country are regarded as refugees.”121 The issue was eventually dealt with by the West German government, which passed a new nationality law in 1955 that allowed the Volksdeutsche to claim naturalization as a right.122

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In the longer-term, the problem was dealt with informally. UNHCR was able to take on an assistance role in the remaining refugee and DP camps in West Germany with support from the Ford Foundation.123 The US government opposed this shift, as it did the creation of an emergency fund for UNHCR. Yet by the end of the 1950s, the United States had accepted that UNHCR as a neutral, though supportive, organization could play a key role in Cold War politics that US-affiliated organizations could not.124

Conclusions: defining forced migrants The debates during the drafting of the Refugee Convention were critical in framing how refugees were understood then and into the present and in excluding IDPs from similar consideration. Practices prior to those debates were not fixed. Both terms “refugee” and “displaced person” were used fluidly in different arrangements, conventions, and international organizational practice. The latter category also frequently included those displaced within their own countries. Hence, it should not be surprising that when the Refugee Convention was negotiated, States considered including internal refugees in it—those people we would now call IDPs. Why IDPs were not included within the scope of the Convention reflected the deliberate effort by the US government to frame refugees as having two constitutive properties: they were both outside their own State and lacked its protection. While this did reflect one strand of historic practice, it also served the strategic goals of the United States. The United States feared that including internal refugees in some form in the Convention would require UNHCR to provide an assistance role, as opposed to an exclusively legal role.

Notes 1 Mrs. Roosevelt (United States of America), “UNGA Official Records (GAOR), 264th Meeting,” 2 Dec. 1949, 473. 2 Goodwin-Gill and McAdam, The Refugee in International Law, 27. 3 James C. Hathaway, The Law of Refugee Status (Oxford: Oxford University Press, 1991), 29–31. 4 Ibid. 5 Orchard, A Right to Flee, 185–9. 6 Loi Relative aux Etrangers Réfugiés Qui Résideront en France, passed on 21 Apr. 1832. 7 Atle Grahl-Madsen, “The European Tradition of Asylum and the Development of Refugee Law,” Journal of Peace Research 3, no. 3 (1966): 280; Emma Haddad, “The Refugee: The Individual between Sovereigns,” Global Society 17, no. 3 (2003): 307. 8 Orchard, A Right to Flee.

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9 John C. Torpey, The Invention of the Passport: Surveillance, Citizenship, and the State (Cambridge: Cambridge University Press, 2000), 124. 10 League of Nations, Ten Years of World Cooperation (Geneva: Secretariat of the League of Nations, 1930), 269. 11 Arrangement with regard to the Issue of Certificates to Russian Refugees, 5 July 1922, 13; League of Nations Treaty Series (LNTS), 355. 12 James C. Hathaway, “The Evolution of Refugee Status in International Law: 1920–1950,” The International and Comparative Law Quarterly 33, no. 2 (1984): 349. 13 Jane McAdam, “Rethinking the Origins of ‘Persecution’ in Refugee Law,” International Journal of Refugee Law 25, no. 4 (2014): 671, emphasis in original. 14 “Minute Defining Russian Refugees,” 28 June 1923, League of Nations Archives, Geneva (LNA), R1729/45/29389/15833. 15 Ibid. 16 League of Nations, “Armenian Refugees,” Official Journal 5, no. 7 (July 1924): 967. 17 Ibid., 968–9. The Council supported this resolution in a June 1924 meeting, ibid., 907–8. 18 Arrangement of 12 May 1926 relating to the Issue of Identity Certificates to Russian and Armenian Refugees, 89 LNTS 2004. 19 Arrangement concerning the Extension to Other Categories of Refugee of Certain Measures taken in favor of Russian and Armenian Refugees, 30 June 1928, 65 LNTS 2006. 20 Convention relating to the International Status of Refugees, 28 Oct. 1933, 159 LNTS 3663, www.refworld.org/docid/3dd8cf374.html. 21 Goodwin-Gill and McAdam, The Refugee in International Law, 16; Weis, “The International Protection of Refugees,” 194; see also Sadruddin, “Lectures by Sadruddin Aga Khan on Legal Problems Relating to Refugees and Displaced Persons Given at the Hague Academy of International Law,” 4. 22 Hathaway, “The Evolution of Refugee Status in International Law,” 349. 23 McAdam, “Rethinking the Origins of ‘Persecution’ in Refugee Law,” 671. 24 Hathaway, “The Evolution of Refugee Status in International Law,” 354. 25 League of Nations, Official Journal 8, no. 10 (1927): 1137–8. 26 Ibid., 1138. 27 Hathaway, “The Evolution of Refugee Status in International Law,” 353. 28 This varied from an earlier League Provisional Arrangement concerning the Status of Refugees coming from Germany, which was introduced in 1936 and specified that a German refugee “was defined to include ‘any person having left German territory who does not enjoy or no longer enjoys the protection of the Government of the Reich’.” Ibid., 363. 29 League of Nations, “Convention concerning the Status of Refugees Coming from Germany,” 10 Feb. 1938, 192 LNTS 4461, www.refworld.org/docid/ 3dd8d12a4.html. 30 Andreas Zimmermann, Jonas Dörschner, and Felix Machts, The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford: Oxford University Press, 2011), 305–6. 31 Goodwin-Gill and McAdam, The Refugee in International Law, 19. 32 McAdam, “Rethinking the Origins of ‘Persecution’ in Refugee Law,” 673.

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33 John Hope Simpson, Refugees: Preliminary Report of a Survey (Oxford: Oxford University Press, 1938), 1; McAdam, “Rethinking the Origins of ‘Persecution’ in Refugee Law,” 673. 34 John Hope Simpson, “The Refugee Problem,” International Affairs 17, no. 5 (1938); Hathaway, “The Evolution of Refugee Status in International Law,” 364. 35 Claudena M. Skran, Refugees in Inter-War Europe: The Emergence of a Regime (Oxford: Clarendon Press, 1995), 137. 36 Orchard, A Right to Flee, 147; Bruce Cronin, Institutions for the Common Good: International Protection Regimes in International Society (Cambridge: Cambridge University Press, 2003), 164 fn; Clarence E. Pickett, “Handling Displaced Populations in Occupied Territory,” Public Opinion Quarterly 7, no. 4 (1943): 592. 37 Jessica Reinisch, “‘Auntie UNRRA’ at the Crossroads,” Past & Present 218, no. 8 (2013): 72. 38 Michael R. Marrus, The Unwanted: European Refugees from the First World War through the Cold War (Philadelphia: Temple University Press, 2002). 39 Martha Biehle, “Intergovernmental Committee on Refugees,” International Organization 1, no. 1 (1947): 144. 40 Weis, “The International Protection of Refugees,” 210; Tommie Sjöberg, The Powers and the Persecuted: The Refugee Problem and the Intergovernmental Committee on Refugees (IGCR), 1938–1947 (Lund: Lund University Press, 1991), 153. As the US government noted, “stateless and non-repatriable persons were clearly established as the responsibility of the Intergovernmental Committee on Refugees by the action of the member government thereof, before the organization of UNRRA . . . UNRRA assumed the functions of caring for and repatriating those who can be repatriated.” “The Adviser, War Areas Economic Division (Gilpatric), and the Adviser on Refugees and Displaced Persons (Warren) to the Assistant Secretary of State (Acheson),” 17 Apr. 1945, Foreign Relations of the United States (FRUS) 1945, vol. 2 General: Political and Economic Matters, 1156–57. 41 George Woodbridge, UNRRA: The History of the United Nations Relief and Rehabilitation Administration, vol. 2 (New York: Columbia University Press, 1950), 471–4; Kim Saloman, Refugees in the Cold War: Toward a New International Refugee Regime in the Early Postwar Era (Lund: Lund University Press, 1991), 39. 42 Agreement for UNRRA, 9 Nov. 1943, www.ibiblio.org/pha/policy/1943/ 431109a.html. 43 See Anna Holian, Between National Socialism and Soviet Communism: Displaced Persons in Postwar Germany (Ann Arbor: University of Michigan Press, 2011), 3; Gerald D. Cohen, “Between Relief and Politics: Refugee Humanitarianism in Occupied Germany,” Journal of Contemporary History 43 no. 3 (2008), 440. 44 UNRRA, “Report of the Committee on General Policy” in “United Nations: Relief and Rehabilitation Administration,” The American Journal of International Law 38, no. 3 (1944): 187 (emphasis added); see also UNRRA, “Resolution No. 10: A Resolution Relating to Policies with Respect to Displaced Persons,” Journal of the Council 1 (1943), 186–7. 45 UNRRA, “Committee IV: Subcommittee 4 Report of the Subcommittee on Policies with Respect to Assistance to Displaced Persons,” 1st Session

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46 47

48

49

50 51 52 53 54

55 56 57

58 59

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UNRRA Council, Selected Documents, 1943, http://babel.hathitrust.org/cgi/ pt?id=wu.89100094416;view=1up;seq=7, 157. See “Agreement on relations between UNRRA and SHAEF (November 1944),” www.cvce.eu/en/obj/agreement_on_relations_between_unrra_and_shaef_Nov_1944-en-ab3c01db-89a0-42fd-a13d-f36820db1053.html. Fox W. Arnold-Forster, “UNRRA’s Work for Displaced Persons in Germany,” International Affairs 22, no. 1 (1946): 3; Grace Fox, “The Origins of UNRRA,” Political Science Quarterly 65, no. 4 (1950): 564; UNRRA Report, 15 Sept.–31 Dec. 1944, www.cvce.eu/en/obj/unrra_report_15_Sept_1944_31_Dec_1944en-cf082c4c-608a-4e8d-b924-10946c1b7b61.html. Warren to Clayton, “UNRRA Authority to Assist Dissident Poles, Yugoslavs, and Baltic Nationals in Germany Who Do Not Wish to Return to Their Homes,” United States National Archives and Record Administration (USNARA), 10 July 1945, 840.50 UNRRA/7–1045. In 1945, following the Yalta Agreement, SHAEF undertook forced returns of over 2 million Soviet prisoners of war and laborers. Malcolm J. Proudfoot, European Refugees 1939–52: A Study in Forced Population Movement (London: Faber and Faber Ltd., 1957), 210–11; Mark Elliott, Pawns of Yalta: Soviet Refugees and America’s Role in Their Repatriation (Urbana: University of Illinois Press, 1982). Arnold-Forster, “UNRRA’s Work for Displaced Persons in Germany,” 2; UNRRA, “UNRRA Program in Italy,” 9 Oct. 1945, www.cvce.eu/en/obj/ unrra_program_in_italy_9_Oct_1945-en-fadaad01-d20a-4e05-906a8f9495ab79cf.html, 2. UNRRA, UNRRA in China, 1945–1947: Operational Analysis Papers, No 53 (UNRRA, 1948), http://babel.hathitrust.org/cgi/pt?id=wu.89007354715; view=1up;seq=21, 151–2. Ibid. John George Stoessinger, The Refugee and the World Community (Minneapolis: University of Minnesota Press, 1956), 50; Jacques Vernant, The Refugee in the Post-War World (London: George Allen & Unwin Ltd., 1953), 30–2. “Agreement for UNRRA.” UNRRA, “Resolution No 60: A Resolution Relating to the Care and Return of Certain Persons of Other Than United Nations Nationality, or Stateless Persons, Found in Liberated Territory,” Journal of the Council 1 (1944): 86; see also J. Baird, “UNRRA Studies Plans to Aid Italy and Jews Displaced in Reich,” The Evening Star, 22 Sept. 1944. Rendel to Loxley, “Displaced Persons,” 16 Jan. 1945, UK Public Records Office, Foreign Office 371 WR353. Dallal Stevens, UK Asylum Law and Policy: Historical and Contemporary Perspectives (London: Sweet & Maxwell, 2004), 121. Manfred Simon to Frederick Morgan, “Definition of a Displaced Person,” 10 Dec. 1945, UNRRA Archives (United Nations Archives) 013.1. Displaced Persons-Correspondence on Eligibility for UNRRA Assistance, S-0400-00232, 1. UNNRA, Washington to London, Outgoing Cable no. 8855, 28 Dec. 1945, UNRRA Archives (United Nations Archives) 013.1. Displaced PersonsCorrespondence on Eligibility for UNRRA Assistance, S-0400-002-32. UNRRA, Outgoing cable no 1675, [9 Feb. 1946], cited in Hathaway, “The Evolution of Refugee Status in International Law: 1920–1950,” 373; see also

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60 61

62 63 64

65 66 67

68 69 70 71 72 73 74 75 76 77 78 79 80 81

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Vernant, The Refugee in the Post-War World, 31. These concerns meant the policy was not immediately applied, but appears to have entered effect by 14 Feb. 1946. See UNRRA London to UNRRA Frankfurt, Telegram, 14 Feb 1946, UNRRA Archives (United Nations Archives) 013.1. Displaced Persons-Correspondence on Eligibility for UNRRA Assistance, S-0400-002-32. Hathaway, “The Evolution of Refugee Status in International Law,” 376. IRO Constitution, Annex 1, Part I, Section A, 1–2. Victims of communist regimes, consequently, were not considered as refugees under the IRO Constitution. George Ginsburgs, “The Soviet Union and the Problem of Refugees and Displaced Persons 1917–1956,” The American Journal of International Law 51, no. 2 (1957): 357–8. IRO Constitution, Annex 1, Part I, Section B. IRO Constitution (n 72), Annex 1, Part I, Section A, 3. Gerald Daniel Cohen, In War’s Wake: Europe’s Displaced Persons in the Postwar Order (Oxford: Oxford University Press, 2011), 141; “Memorandum” enclosed with British embassy (Washington) to US Department of State, 13 May 1946, USNARA 501.BD Refugees/5–1346, 4. Cohen, In War’s Wake, 142. Ibid., 45. IRO Constitution, Annex 1, Part I, Section C. Soviet citizens, concerned that they might be repatriated, were quick to assume new national identities. Thus, in July 1948, the IRO officially found 1,452 Soviet DPs in its camp. Estimates among IRO officials, however, ranged as high as 1 million Soviet DPs George Fischer, “The New Soviet Emigration,” Russian Review 8, no. 1 (1949): 8. United Nations, A Study of Statelessness (Lake Success, NY: United Nations Publications, 1949), 7. Rene Ristelhueber, “The International Refugee Organization,” International Conciliation no. 470 (1951): 220. Cohen, In War’s Wake, 115. Aristide R. Zolberg, Astri Suhrke, and Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (Oxford: Oxford University Press, 1989), 129–33. Stoessinger, The Refugee and the World Community, 159–61; Saloman, Refugees in the Cold War, 231–2; Orchard, A Right to Flee, 175. Stoessinger, The Refugee and the World Community, 162–3. United Nations, A Study of Statelessness, 73–4; Goodwin-Gill and McAdam, The Refugee in International Law. UN Ad Hoc Committee on Statelessness and Related Problems, “Status of Refugees and Stateless Persons: Memorandum by the Secretary-General,” E/ AC.32/2, 3 Jan. 1950. Ibid. “Refugees and Stateless Persons: Report of the Secretary-General,” UN doc A/ C.3/527, 26 Oct. 1949, 33. ECOSOC res 248(IX)B, 8 Aug. 1949. IRO doc GC/257/Rev.1, 8 Nov. 1951 cited in Stoessinger, The Refugee and the World Community, 154. Mrs. Roosevelt (US), UN GAOR, 262nd Meeting, 14 Nov. 1949, 135. “Refugees and Stateless Persons: Problems of Assistance to Refugees,” 2 Sept. 1950, FRUS 1950, vol. 2, The United Nations, The Western Hemisphere,

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82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112

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539–40. See also Troutman to Secretary of State, 30 June 1949, USNARA, 501.MA/6-3049, 2. Orchard, A Right to Flee, 185–9. Clayton, cited in Dean Acheson, Present at the Creation: My Years in the State Department (New York: W.W. Norton, 1969), 231. “Refugees and Stateless Persons,” 9 Sept. 1950, FRUS 1950. Mr. Kotschnig, ECOSOC, 326th Meeting, 6 Aug. 1949, ECOSOC Official Records, 1950, 622 see also Saloman, Refugees in the Cold War, 219. Acheson to US Delegation to the United Nations, 11 Aug. 1949, USNARA 501.MA/8-549. “United Nations Machinery for the Protection of Refugees,” SD/A/C.3/128/ Rev.1, 24 Sept. 1949, USNARA 82D211–Position Papers 1946–1950, 6. Ibid., 6. Mr. Contoumas (Greece), UN GAOR, 257th Meeting, 8 Nov. 1949, (A/C.3/ 527), 110. Ibid., 110. Mr. Freyre (Brazil), UN GAOR, 265th Meeting, 3 Dec. 1949, 484. Mr. Makin (Australia), UN GAOR, 264th Meeting, 2 Dec. 1949, 479–80. Freyre (Brazil), 485. Makin (Australia), 480. Mrs. Castle (UK), UN GAOR, 257th Meeting, 8 Nov. 1949, 111. Mr. Corley Smith (UK), UN GAOR, 265th Meeting, 3 Dec. 1949, 490. Mrs. Roosevelt (US), UN GAOR, 264th Meeting, 2 Dec. 1949, 473. Ibid., 474. “Refugees and Stateless Persons,” UNGA res 319(IV) (A), 3 Dec. 1949. George L. Warren, “UN Action on Status of Refugees and Stateless Persons,” Department of State Bulletin 25, no. 24 (Sept. 1951): 503. “Refugees and Stateless Persons,” 9 Sept. 1950, FRUS 1950, 542; see Mrs. Roosevelt (US), UN GAOR, 324th Meeting, 22 Nov. 1950, 331. “Refugees and Stateless Persons,” 542, 546. Zimmermann, Dörschner, and Machts, The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol, 309. Lord MacDonald (UK), UN GAOR, 324th Meeting, 22 Nov. 1950, 330–1. Ibid. Mrs. Roosevelt (US), UN GAOR, 329th Meeting, 29 Nov. 1950, 363. Ibid. Mr. Rochefort (France), Ad Hoc Committee on Refugees and Stateless Persons, 33rd Meeting, 14 Aug. 1950, E/AC.32/SR.33. Zimmermann, Dörschner, and Machts, The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol, 309. Cited in Kazimierz Bem, “The Coming of a ‘Blank Check’: Europe, the 1951 Convention, and the 1967 Protocol,” International Journal of Refugee Law 16, no. 4 (2004): 614. Mr. Rochefort (France), UN GAOR, 333rd Meeting, 4 Dec. 1950, 391; see also James C. Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge: Cambridge University Press, 2014), 18. Rochefort (France), 391; see also G. Goodwin-Gill, “Different Types of Forced Migration Movements as an International and National Problem” (1988 Fulbright Conference: The Uprooted, Forced Migration in the Post-War Era, Lund, 1988), 22.

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113 UNGA res 429(V), 14 Dec. 1950; UNHCR, “Colloquium on the Development in the Law of Refugees with Particular Reference to the 1951 Convention and the Statute of the Office of the United Nations High Commissioner for Refugees held at Villa Serbelloni Bellagio (Italy) from 21–28 Apr. 1965: Background Paper Submitted by the Office of the United Nations High Commissioner for Refugees,” MHCR/23/65, 28 Apr. 1965, 67–1809, www. refworld.org/docid/3ae68be77.html. 114 UNHCR Statute, para 7(b). 115 Gil Loescher, The UNHCR and World Politics: A Perilous Path (New York: Oxford University Press, 2001), 50–1. 116 “Summary of Conversations at the Department with Dr. G. J. van Heuven Goedhart, United Nations High Commissioner for Refugees, Concerning the Organization and Work of His Office,” USNARA 398.411-IRO/3-1651, 16 Mar. 1951. 117 Acheson to Frankfort, 28 Mar. 1951, USNARA 398.411-IRO/3-2851. Acheson provided an example: “US has taken position that measures re relief and absorption within [Turkey] of [Turkish] refugees expelled from [Bulgaria] are primarily responsibility [Turkish government].” This is a telegram that omitted a number of words which have been added in brackets for clarity. 118 Summary of speech by Dr. Gerrit Jan van Heuven Goedhart, “UN High Commissioner for Refugees, before ECOSOC,” 3 Sept. 1951, www.unhcr.org/cgibin/texis/vtx/search?page=search&docid=3ae68fca38&query=Goedhart% 20ECOSOC. 119 “Refugees and Stateless Persons,” 13 Oct. 1951, USNARA SD/C.3/147, 1–2. 120 “Goedhart to Beckelman,” 15 Feb. 1952, Archives of the American Jewish Joint Distribution Committee, http://search.archives.jdc.org/multimedia/Documents/Geneva45-54/G45-54_ORG/G45-54_ORG_051/G4554_ORG_051_0057.pdf#search=goedhart. 121 Mr. Pavlov (USSR), UN GAOR, 371st Meeting, 2 Feb. 1950, 483. 122 UNHCR, “UNHCR Note on the Interpretation of Article 1E of the 1951 Convention Relating to the Status of Refugees,” Mar. 2009, www.refworld.org/ docid/49c3a3d12.html, 2. The Basic Law, passed in 1949, had defined “a German” as including “any refugee or expellee of German ethnic origin or as the spouse or descendant of such person.” 123 Ford Foundation, Final Report on the Ford Foundation Program for Refugees, Primarily in Europe (New York: Ford Foundation, 1958). 124 Loescher, The UNHCR and World Politics; Orchard, A Right to Flee.

4

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The emergence of assistance and protection norms toward IDPs

UNHCR and the creation of an IDP assistance norm The need for IDP protection The northern Iraq crisis and the Security Council The United Nations takes action Conclusion

The debates which occurred around the Refugee Convention negotiations, and with Goedhart’s later actions, focused exclusively on the question of whether international assistance should be provided to IDPs, an answer to which the international response in the early 1950s was no. Further, these debates did not focus at all on the question of IDP protection at the international level. Not surprisingly, this reflected the world created by the UN Charter and by its definition of sovereignty, one which saw a rule of non-interference in the affairs of states as sacrosanct. While the Charter acknowledges “fundamental human rights” in its Preamble, in Article 2(7) it notes that nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.1 Responding to the problem of internal displacement, therefore, required a major shift, reflecting the emergence of new norms around how the international community understood IDPs. The first of these, and arguably the easiest to establish, was a principle that the international community could provide assistance to such persons without violating this understanding of sovereignty. This norm was established through ad hoc practices,

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principally by UNHCR, in the 1970s, and was then introduced in a consistent manner through a General Assembly Resolution in 1991. The second norm was that the international community could also provide international protection to these IDPs. As noted in the introduction, UN definitions of IDP protection are the same as the definitions of protection that the International Committee of the Red Cross (ICRC) created in the 1990s. This reflects a form of normative grafting: states had long accepted the rights of the ICRC to intervene domestically to ensure that states (and non-state actors) were upholding their duties under the Geneva Conventions.2 By adopting the same language, it appears that the UN, and particularly the Inter-Agency Standing Committee (IASC), sought to extend a similar notion of protection to IDPs. But protection has two aspects: legal and physical. Thus, while legal protection was further developed through the Guiding Principles on Internal Displacement, physical protection continued to be problematic. Finally, with the Guiding Principles, we see these two norms aligned with a clear definition of IDP status which has become widely accepted. But, with the Guiding Principles, there remains a key issue in contention: how the international community should response to IDP situations where the state concerned is either unable to protect its own citizens, and unwilling to allow international access, or at the extreme is engaged in mass atrocity crimes against its own population. This chapter focuses on how these first two international norms developed between 1971 and 1998, while the next chapter explores contemporary developments.

UNHCR and the creation of an IDP assistance norm While an assistance role for UNHCR was a point of contentious negotiations during its creation, over the course of 20 years, it demonstrated to the international community that it could be both an effective and a neutral provider of humanitarian assistance.3 By the early 1970s, UNHCR began to also provide assistance to internally displaced persons. This shift could have occurred earlier. As early as 1966, US Senator Edward Kennedy had approached the then High Commissioner for Refugees Sadruddin Aga Khan to ask if UNHCR could play a role in assisting Vietnamese IDPs. However, the agency made it clear that such a role would need to be non-political and include both North and South Vietnam, a position unacceptable to North Vietnam and to the United States. Sadruddin also argued that, as it was outside UNHCR’s mandate, it would require an authorizing resolution from the General Assembly.4 UNHCR took a similar view following the Indonesian coup of 1966 and during the Nigerian Civil War over Biafra from 1967 to 1970. The Nigerian

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government took the position that all relief operations into Biafra was subject to “search and approval” by the government.5 Some NGOs undertook humanitarian aid flights into Biafra without government approval. UNHCR, however, deliberately took no action. As the High Commissioner argued, Since “Biafra” is not recognized as a separate state, the displaced people from other parts of Nigeria into Eastern Nigeria do not fall within the mandate of the Office and, therefore, there is nothing the Office could do for them.6 Loescher notes that in both these cases “the Office took a legalistic position, arguing that these situations were not a matter within the competence of the High Commissioner and were not a matter of direct concern to the UNHCR for ‘constitutional’ and legal considerations.”7 In 1971, the large-scale atrocities perpetrated by the Pakistani government against the Bengali population of East Pakistan (now Bangladesh) shifted this position. The government of Pakistan is estimated to have killed between 300,000 and 1,500,000 people in East Pakistan during the year and caused an estimated 8 to 10 million refugees to flee into India .8 UN Secretary-General U Thant took two steps to attempt to respond to the crisis. The first was to warn Security Council members that the conflict could escalate into a war on the subcontinent and that it was their responsibility to avert this occurring.9 In effect, Wheeler suggests, U Thant, “by arguing that Pakistan’s internal repression constituted a threat to ‘international peace and security,’” opened up the possibility “for the Security Council to act under Chapter VII of the Charter.”10 The Security Council, however, did not take any action.11 U Thant’s second action was to appoint the High Commissioner for Refugees as the focal point for the coordination of assistance across the UN system.12 U Thant took this action, he argued, because “I felt that my obligations under the Charter must include any humanitarian action which I could take to save the lives of large numbers of human beings.”13 But this represented a significant shift in UNHCR’s mandate. As Sadruddin noted in October 1971, As a result of the ever-changing nature of the situation of displaced persons, my Office has been called upon increasingly to perform functions not foreseen when its original mandate was evolved. The use of UNHCR’s “good offices” role is a natural by-product of this evolution.14 While initially assigned the task by the Secretary-General, UNHCR’s role as the focal point for the UN’s East Pakistan Relief Operation was

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then endorsed by the General Assembly. UNHCR’s primary mandate was to respond to the refugee crisis, but the General Assembly also asked the High Commissioner to take on a wider mandate to provide assistance within East Pakistan, requesting “the Secretary-General and the High Commissioner to continue their efforts to co-ordinate international assistance . . . to relieve the suffering of the refugees in India and of the people of East Pakistan.”16 Individual statements by states argued explicitly that there was a clear need to provide assistance to the population of East Pakistan as well as to the refugees.17 While this marks a significant change by expanding UNHCR’s activities to IDPs for the first time, there are two interesting points to note here. The first is that when this decision was made, it appears to have been viewed as unique. No states suggested that this was precedential. The second is that while UNHCR had engaged in clear norm entrepreneurship around refugees and that this shift may have well been a natural outgrowth of its successful use of its good offices role, the agency itself does not appear to have lobbied or pushed for this role, or even to have identified it as a specific need. Further, in this case, it is unclear how involved UNHCR became with the internally displaced population. Due to the ongoing hostilities, the relief operation inside East Pakistan was quickly halted.18 Then, in December 1971, the crisis led to the Indo-Pakistani War and the creation of the independent state of Bangladesh from East Pakistan. Following Bangladesh’s independence, UNHCR’s focus shifted to a massive return operation as more than 9.5 million refugees returned within the next three months.19 UNHCR’s own history of its operational experiences with IDPs notes that there “is no specific mention in the files of UNHCR engaging in protection activities” toward IDPs in this case.20 The following year, UNHCR undertook its first operation to directly assist IDPs. This was in Sudan and followed the Addis Ababa Agreement which ended the 17-year-long first Sudanese civil war. This began when the President of Sudan made a direct request to the Secretary-General for assistance, specifically requesting that UNHCR assume “primary responsibility for coordinating the response of the United Nations system in the initial phase,” including assisting 200,000 refugees and “some 4 to 500,000 people uprooted within Southern Sudan itself.”21 This operation, like that in East Pakistan, was subsequently endorsed by the General Assembly, which requested “the High Commissioner to continue to participate, at the invitation of the Secretary-General, in those humanitarian endeavors of the United Nations for which his Office has particular expertise and experience.”22 The General Assembly also commended “the United Nations High Commissioner for Refugees for his efficient role in the coordination of relief and resettlement operations of

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23

refugees and other displaced persons” in Sudan. The resettlement and assistance operation was successful and in 1974 responsibility for longterm development aid was transferred to UNDP.24 In 1976, Sadruddin would note that this authorization was a significant shift in terms of UNHCR assistance programs: Since by definition a person may be considered a refugee only once he is outside his country of origin, assistance within his country of origin had not hitherto been provided in the frame of the UNHCR assistance programs. A precedent was thus created which subsequently led to further similar action.25 While it remained at this stage on a case-by-case basis, such referrals to UNHCR not only became commonplace, but also occurred with little dissension among the General Assembly. It was also understood as purely an assistance mandate, with the General Assembly noting “with appreciation the efforts of the High Commissioner in carrying out his duties including the special humanitarian tasks undertaken by him” and urged “governments to intensify their support of the High Commissioner’s humanitarian tasks.”26 This pattern would be replicated with a number of other conflict and post-conflict crises. In 1974, UNHCR was asked to operate in four postconflict situations. In the former Portuguese colonies of Angola, GuineaBissau, and Mozambique, UNHCR provided aid to both returning refugees and internally displaced persons.27 Its operation in Cyprus would prove more complicated. There, the Secretary-General asked UNHCR to coordinate the humanitarian effort with the primary purpose of providing “timely and efficient emergency relief to the large number of persons presently displaced in the Island.”28 Sadruddin once again would note that this reflected an expansion of operations. In an address to UNHCR’s staff, he noted: It shows that when facing the problem of displaced persons who clearly are not refugees in the legal sense of the word (these are Cypriots displaced in their own island) it is to UNHCR that the Secretary-General and governments tend to turn for assistance. I must admit that I was rather reluctant for UNHCR to continue its involvement in this tragic situation, but there was no choice . . . We do not yet know what will happen to the refugees whose future is obviously linked to the ultimate political solution of this tragedy, but clearly the Office should not become a permanent relief agency in Cyprus.29 In Sadruddin’s address, there is clear recognition that UNHCR was being asked to do more and more humanitarian work. But he recognized in his reluctance two issues: that not only might the agency be taking on tasks

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that moved it away from its core mandate of refugee protection, but also the possibility that this could require UNHCR to take on a role of long-term or even permanent assistance provision in some cases. These issues became clearer as UNHCR became involved in Indochina. As noted previously, a decade earlier there had been pressure on the agency to become involved with the internally displaced in Vietnam. In 1974, UNHCR was again requested “to assist in the rehabilitation of uprooted and displaced persons in the Indo-China peninsula.” This time, UNHCR agreed to provide an assistance program in Laos and Vietnam.30 In this case, however, the term was used in an encompassing fashion, describing “both internally and externally displaced persons in the South-East Asia region.”31 As Davies suggests, this reflected the fact that “UNHCR chose not to argue that these groups were prima facie refugees or insist that other states provide resettlement offers.”32 This language was used both by governments in the region and by UNHCR. However, Jackson notes this marked a significant change in how both the concepts of “displaced persons” and so-called special operations was used by the UNHCR, with the “displaced persons” term being used exclusively up to 1975 to refer to internally displaced persons.33 This expansion continued. In 1976, ECOSOC provided a wider definition of displaced persons—albeit still linked directly with assistance—when the Council commended the High Commissioner for “his efforts on behalf of refugees and displaced persons, victims of man-made disasters in need of urgent humanitarian assistance.”34 Given this mix of views, in 1977, the High Commissioner requested the Executive Committee to clarify the distinction between refugees and displaced persons. While “no formal advice was tendered . . . there was considerable support for the view that refugees had crossed an international frontier, whereas displaced persons had not.”35 And yet, the “displaced persons” terminology continued to be applied to both IDPs as well as people outside their own country who did not fall within the refugee definition. Jackson notes that the General Assembly’s 1979 resolution on UNHCR spoke generally of “refugees and displaced persons” and for both the High Commissioner and governments to promote “durable and speedy solutions,” including through return to their countries, integration or resettlement.36 These solutions, he suggests, “are by their nature relevant to refugees and, to the extent to which they can be interpreted as applying also to displaced persons, they must necessarily relate to persons displaced outside their former home country.”37 In 1980, UNHCR again used displaced persons as an encompassing term, stating that “displaced persons may be uprooted within their countries or cross an international border, and the causes for uprooting may be natural, man-made, or both.”38

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But this shift in language also reflected a move away from IDPs by both the General Assembly and UNHCR. Beginning in 1983, while the General Assembly’s annual resolutions on UNHCR continued to include references to the problem of refugees and displaced persons, they tended to use different language around the need for state cooperation with UNHCR, instead referring only to “refugees and asylum seekers.”39 UNHCR’s role toward IDPs also shifted in the 1980s in two ways. As Lanz notes, increasingly UNHCR “acted essentially in an ad hoc manner, solely based on the General Assembly’s tacit approval of previous IDP operations as well as on a request from the UN Secretary-General and the state concerned.”40 Thus, in 1979, the Ethiopian government requested UNHCR’s assistance with a growing internally displaced population in the Ogaden region following the Ogaden War with Somalia, which reached 750,000 by March of 1980. That year, the Secretary-General also requested the High Commissioner to coordinate a humanitarian assistance program for 265,000 displaced Ugandans following a request from the government. Similar requests happened from Zimbabwe in 1980 for 410,000 IDPs and Chad in 1981 for 50,000 IDPs. In each case, UNHCR appears to have undertaken no protection activities.41 In 1982, UNHCR also undertook an emergency relief program in Lebanon for some 100,000 uprooted, though in this case there appears to have been no formal request from either the Secretary-General or the government authorities, or from the General Assembly through a resolution.42 But there was also less involvement in IDP situations during that decade. Former High Commissioner Sadruddin Aga Khan would write in 1986 that while such operations in the 1970s suggested a de facto extension of the mandate, “in the 1980s, however, financial and political pressures have halted this process, and UNHCR has proved reluctant to come to the rescue of internally displaced people.”43 Poul Hartling, Sadruddin’s successor as High Commissioner, noted in his 1981 Statement to UNHCR’s ExCom that UNHCR as a rule does not engage in assistance to internally displaced persons. Indeed, on a few occasions when I have been approached, I have declined to engage in operations geared almost exclusively towards internally displaced persons. This applies all the more when the main cause for internal uprooting is a disaster which is not man-made.44 Thus, in 1985, the General Assembly passed a resolution concerning the human rights situation in El Salvador which noted the number of refugees and IDPs, but which only requested states to support “the autonomous organizations responsible for looking after internally displaced persons in

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El Salvador,” rather than directing UNHCR to take action. This decline in UNHCR’s activities toward IDPs was also raised in a 1989 report by the Secretary-General, which, while noting UNHCR’s role in such situations in the 1970s, did not include any operations at all from the 1980s.46 By the end of the 1980s, UNHCR’s role began to change again. In Nicaragua in 1987, it undertook a comprehensive repatriation and rehabilitation plan following the Esquipulas II peace agreement. While this was primarily a refugee return program, UNHCR began to undertake protection activities, including the monitoring of general security and welfare conditions which helped to build confidence in the population.47 That same year, the General Assembly once again requested UNHCR “to mobilize international assistance” to support operations to assist refugees and displaced persons in Malawi.48 And in Sri Lanka in 1988, UNHCR launched an assistance program to help 400,000 IDPs following a peace treaty between India and Sri Lanka. But as fighting resumed in 1990, UNHCR established a series of Open Relief Centers to distribute humanitarian assistance. The Open Relief Centers effectively became safe areas, supported by verbal understandings “obtained from both the government and the LTTE [Liberation Tigers of Tamil Eelam] to abstain from military operations in these areas.”49 Once again, UNHCR engaged in some protection activities including monitoring the situation.50 Thus, while UNHCR had played a significant role with IDPs during this period, it was focused almost entirely on the issue of assistance. Discussions of the legal status of IDPs, or the need for legal protection, did not appear. While by the late 1980s UNHCR began to take on some protection activities, these generally reflected monitoring return movements. More generally, what began as an ad hoc activity—the General Assembly referring a humanitarian assistance mission to UNHCR—had become a regular pattern of practice within the UN, accepted by its member states. While there was no move to formalize this practice, its regularity suggests that by the late 1970s a principle norm of international assistance to IDPs existed. This norm was limited in its application. It was generally applied only following a request from the concerned state, and therefore state consent was critical. And it was understood by the UN General Assembly that UNHCR would be the international organization enacting the normative practice in each case and that UNHCR was undertaking these activities outside of its formal mandate. Further, as an informal norm, this practice failed to address the issue of IDP protection at either the state or international levels. And, finally, it provided an easy way for the UN system to dodge the question of sovereignty. By the end of the 1980s, however, and with clear growth in IDP numbers globally, such an informal norm by itself could no longer provide an adequate international response.

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The need for IDP protection Beyond the work of UNHCR and, as noted ahead, the ICRC, the problem of internal displacement was not really recognized in the early 1980s; by contrast, at the end of that decade, widespread reforms of the UN system were underway. This reflected a clear growth in IDP numbers—Cohen and Deng note that “a first counting in 1982 found 1.2 million in eleven countries. By 1986 the total had risen to an estimated 11.5 million to 14 million, with twenty countries affected.”51 Informal figures tracked by the US Committee for Refugees and Migrants during this time period suggested that between 1970 and 1984, while annual figures varied, on average there were around 5.5 million IDPs globally throughout this period. In 1985, there was a significance increase to 12 million, and then to 18 million two years later. Not surprisingly, this significant growth in IDP figures began to trigger a reaction within the UN system. In 1986, a critical report was issued which identified the need for both IDP assistance and protection. The report, done by the Independent Commission on International Humanitarian Issues, led by Sadruddin Aga Khan and Hassan Bin Talal, argued that “the international community’s response to the plight of displaced people has been unsystematic. No single UN agency is specifically mandated to protect and assist internally displaced people.”52 They further argued that there was “a considerable degree of confusion over the responsibility of various intergovernmental agencies for the protection and material status of displaced people.”53 Instead, they marked the range of actors involved in individual operations which lacked any form of central coordination, including, of course, UNHCR, but also the UN Relief Works Agency (UNRWA), UNICEF, the ICRC, and the Secretary-General’s own UN Office for Emergency Operations in Africa.54 The ICRC, in particular, had by the 1980s taken on significant activities toward internally displaced civilians and had already recognized the need for both assistance and protection. In Resolution XXI, adopted by ICRC in 1981, it committed that the Red Cross should at all times be ready to assist and to protect refugees, displaced persons and returnees, when such victims are considered protected persons [under the Geneva Conventions and Protocol] . . . especially when they cannot, in fact, benefit from any other protection or assistance, as in some cases of internally displaced persons.55 In 1986, the ICRC passed an additional resolution which requested that governments permit the Red Cross movement “to come to the aid of

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persons without any other suitable protection or assistance, as in certain cases where persons are displaced within their own country.”56 Similar arguments were echoed in two major UN-sponsored conferences. The Conference on the Plight of Refugees, Returnees, and Displaced Persons in Southern Africa, which was held in Oslo in 1988, pointed directly to this weakness in its conclusions when it came to the 5 million IDPs in Angola and Mozambique. Representing the host state, the then Norwegian Prime Minister Gro Harlem Brundtland noted that “it was essential that a mechanism be established to deal more effectively with the delivery of assistance, in particular to internally displaced persons. Such a mechanism could be established under the authority of the Secretary-General of the United Nations.” Moussa Traorpé, the President of Mali and the Chairman of the OAU, also noted “the absence of any international legal arrangement to cater for internally displaced persons.” Both of these issues were noted in the Conference’s conclusions, which stated that “while legal institutions have been established to cater for the needs of refugees, displaced persons, on the other hand, do not have such institutions” and made an appeal to the Secretary-General to hold consultations within the UN “with a view to ensuring assistance to displaced persons.”57 The next year, another conference, the International Conference on Central American Refugees (CIREFCA), recognized that IDPs, in particular, required special assistance even though they remained subject to the jurisdiction and protection of their national authorities.58 These concerns prompted the General Assembly to request the SecretaryGeneral to consider establishing a mechanism to coordinate relief for IDPs.59 At the time, however, the Secretary-General stated that he “does not believe it necessary or appropriate to establish a new mechanism or arrangement to ensure the implementation or overall coordination of relief programs to internally displaced persons,” instead suggesting that strengthening the existing informal arrangements were enough.60 In spite of this, these conferences raised the profile of IDPs among states in the United Nations, who began to push for more coordinated action and which created two separate processes. The first, within UNHCR, began in 1989 when the ExCom adopted a new conclusion on “Durable Solutions and Protection” and created a new Working Group to “examine protection and solutions in a coherent and comprehensive manner.”61 The Working Group’s report was completed in 1991. On the basis of the information it had gathered, the Working Group chose to examine the protection issues of a range of forced migrants, including IDPs.62 The Working Group concluded that the protection public international law afforded to IDPs was inadequate. While international humanitarian law did “afford fairly extensive protection to civilian and military victims, including

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displaced persons,” in the case of “internal disturbances and tensions,” the group concluded, “international humanitarian law offers scant protection; international humanitarian law is not applicable and many human rights can be suspended, leaving only non-derogable human rights in effect.”63 Thus, the Working Group concluded along the same lines as the two earlier conferences that the fundamental issue was protecting IDPs. However, the Working Group—including as it did a range of member states—was stuck on the issue of state sovereignty. Some delegations argued that state sovereignty went “hand-in-hand with State responsibility as well as with the collective responsibility of the international community.” Others, however, felt “that the international community should not impose measures on governments.”64 The result was that the Working Group concluded weakly that “UN humanitarian action needed to be based on dialogue and the UN system needs to develop further the principles which would govern its humanitarian response.”65 In addition, ECOSOC took up the issue as well, and in 1990, it requested the Secretary-General to initiate a review process which led to a report by Jacques Cuénod the following year.66 As with the Working Group, Cuénod’s report noted that assistance to IDPs “raises delicate issues for the United Nations system” with respect to sovereignty, with the possibility that offers of assistance “may be interpreted as an interference in the internal affairs of the State.”67 Cuénod also raised the issue of protection, noting that IDPs “are often not only in need of humanitarian assistance, but also the protection of an independent force from harassment by either of the belligerent parties.”68 He added, however, that “the mere physical presence of international relief workers is often the only effective protection possible.”69 Cuénod proposed a reconfiguration of UN structures to improve coordination of humanitarian and development activities.70 This included a new entity to replace the UN Disaster Relief Coordinator, a new standing group for humanitarian and development activities, and permanent task forces in specific countries.71 While both the Working Group and Cuénod reports were being drafted, however, the UN’s focus would be shifted considerably by a major event— the Gulf War.72 Iraq invaded Kuwait on 2 August 1990. This led to the creation of a US-led military coalition over the next few months, and the re-invasion and liberation of Kuwait through Operation Desert Storm in January and February 1991.

The northern Iraq crisis and the Security Council In the aftermath of the liberation of Kuwait, uprisings occurred among both the Kurdish (in the north) and Shiite (in the south) minority populations of

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Iraq. These were quickly crushed by the Iraqi military and triggered a massive flow of displaced persons beginning in March 1991. At least 1.5 million refugees fled the country across the border into Iran and Turkey. The Turkish government responded to this massive influx by closing its border with Iraq, leaving a further 1 million internally displaced Kurds within Iraq.73 The result was a massive humanitarian crisis with a death rate of between 400 and 1,000 per day among the IDPs due to “hypothermia, exposure, exhaustion, and bacteria-ridden drinking water, which led to pneumonia, diarrhea, and cholera.”74 Thus, while the IDP issue was being considered within the various UN humanitarian bodies, suddenly it also ended up on the Security Council’s agenda. This was at a critical time for the Council and for how the United Nations as a whole undertook peacekeeping and other forms of conflict resolution. The UN Security Council, in particular, began to interpret its role as established within the UN Charter to also include a new focus on “well-being of civilian populations.”75 With the Gulf War, Walling has suggested, there was a new “context in which it was possible for Security Council members to consider the relationship between human rights and international security.”76 Over the next two decades, this would transform how the Security Council approached peacekeeping and mass atrocities, a subject I return to in the next chapter. While the Council failed to take action in northern Iraq—leading instead to a multilateral intervention led by the United States, the United Kingdom, and France—this crisis did trigger significant debate within the Council as to how to respond to Iraq’s repression, culminating in Resolution 688 which was passed on 5 April 1991. This is an interesting moment to focus on, because it shows just how fluid the Security Council’s views on how the international community should respond to situations which produced large-scale flows of forced migrants were. The debates were primarily around the effects that refugee flows from Iraq would have in the wider region. The push for an international response began from the Turkish government. In a letter to the Security Council on 2 April 1991, the Turkish government argued the actions of the Iraqi government “violate all norms of behavior towards civilian populations and constitute a threat to the region’s peace and security.”77 But in a telephone call with US President George H. W. Bush, Turkish President Turgut Ozal had suggested broader international action, including an “appeal to the UN for a UN presence in northern Iraq to stop the killing” while also accusing the Iraqis of “pushing” refugees to the Turkish border.78 At the same time, the French government was also playing an active role at highlighting the crisis within the UN. They had raised the Kurdish situation directly in the Council on 3 April

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1991, arguing that “the Security Council has a duty to say something about this situation.”79 These concerns led the Council to pass Resolution 688 on 5 April. While recalling Article 2(7) of the Charter and not explicitly invoking Chapter VII, the resolution not only condemned the repression “of the Iraqi civilian population in many parts of Iraq” and that “the consequences of which threaten international peace and security in the region” but demanded that Iraq “immediately end this repression.”80 This resolution was a significant change in the Council’s practice. As Walling notes, it “challenged the traditional meaning of sovereignty by interfering in the internal affairs of the Iraqi state and by linking minimal standards of human rights protection to the meaning of legitimate sovereign authority.”81 The Council, however, demanded no further action from Iraq other than ending the repression and allowing immediate access for humanitarian organizations.82 Malone notes that the resolution “did not condemn the repression itself as a threat to international peace and security—only its transboundary effects—nor take steps under Chapter VII to put a stop to it.”83 The French government tempered its language in the Council, and rather than calling for a duty of intervention noted only that the actions against the Kurds were assuming “the dimension of a crime against humanity” and that the demands made in the resolution “are the minimum that the members of the international community must make.”84 The majority of states, however, framed the issue exclusively in terms of the refugee flows being a threat to international peace and security. The Turkish ambassador noted that there is no way in which what is going on in northern Iraq can be justified as an internal affair of that country . . . No country can cope with such a massive influx of destitute people fleeing for their lives. Turkey will not allow its border provinces to be overwhelmed by such a flood of displaced persons.85 The Iranian representative argued that flow of civilians added an international dimension to the crisis and threatened the security of neighboring countries.86 States which opposed the resolution did so by arguing not that the problem did not exist, but that it was not within the Council’s mandate to respond. Thus, the Yemeni representative noted that it was a problem that did not threaten international peace and security87 the Zimbabwean representative that it was a “domestic political conflict”88 and, as the Cuban representative noted, that while there were legitimate humanitarian concerns, the Council had “no right to violate the principle of non-

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intervention.” The Iraqi government itself argued simply that the resolution was “a flagrant, illegitimate intervention in Iraq’s internal affairs and a violation of Article 2.”90 The limited nature of the resolution allowed the USSR to support it, while China abstained, allowing it to pass (India, serving as an elected member, also abstained).91 The Chinese delegate noted that the refugee flows were concerning, but that a state’s internal affairs were involved in the question.92 This was recognized as a significant shift in how the Council viewed its mandate to respond to forced migrant situations and to some instances of internal repression. Participants at a June 1991 conference on human rights protection for internally displaced persons noted “the resolution had made clear that civilians trapped in conflict situations should be helped no matter what the position of their government.”93 By significantly reinterpreting its mandate within the Charter, for the first time, the Council had passed a resolution in which a country’s internal situation and the ensuing forced migrant flows led it to demand that that the country alter its behavior.

The United Nations takes action By late 1991, the United Nations was actively seized on the IDP issues. Two reports—from UNHCR’s ExCom and the Cuénod report requested by ECOSOC—had both been produced. And the events in northern Iraq had significantly raised the profile of the issue of internal displacement not just within the UN, but also to a much wider global audience. However, debates within the wider United Nations were divided over the issue of sovereignty.94 These reports culminated in significant reforms to the UN system, marked by United Nations General Assembly Resolution 46/182.95 The resolution took a number of steps, including establishing the post of Emergency Relief Coordinator (ERC), setting up the InterAgency Standing Committee (IASC), which became the UN’s primary mechanism for inter-agency coordination of humanitarian assistance, and creating the Department of Humanitarian Affairs, which later became OCHA.96 However, while this process had begun as a way to respond to internal displacement, the resolution made no direct references to IDPs. This was because of divisions between the UN member states, with many developing countries fearful that “any new UN initiatives would lead to unwarranted intervention in the domestic affairs of their countries.”97 These disputes led to a compromise position with the resolution reinforcing the point that the sovereignty, territorial integrity and national unity of countries will be respected and emphasizes that humanitarian assistance should

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be provided with the consent of the affected country and, in principle, on the basis of an appeal by the affected country.98 Resolution 46/182 thus formalized the practices that had developed over the preceding two decades around IDP assistance. However, because of these disputes over sovereignty, 46/182 neither improved “the UN capacity to provide assistance to the internally displaced,”99 nor addressed specifically the issue of whether and how the United Nations should engage in IDP protection. The creation of the IASC did lead to some changes. One of its first acts was to create an ad hoc IDP Task Force, which designated the UN’s ERC as both the IDP protection and assistance reference point. However, as Weiss and Korn note, “as originally constituted, the task force did not even have the authority to discuss specific situations of internal displacement.”100 And UNHCR, with General Assembly authorization, increasingly undertook operations responding to situations of internal displacement, including in some 20 countries between 1991 and 1994.101 Pressure also began from outside the United Nations. A number of international non-governmental organizations, including the Friends World Committee for Consultation, the World Council of Churches, and the Refugee Policy Group, began pushing the issue and serving as norm entrepreneurs. After a conference in 1990, in which representatives of the UN and various diplomats “questioned whether this was an issue for the UN; that its magnitude and internal nature raised too many potential problems for the UN,” these NGOs considered options about where to raise the problem. The first option—taking it to UNHCR’s Executive Committee— was viewed as unlikely since the Excom was primarily concerned with refugees. The second option—taking it to the General Assembly—was also unlikely given the Assembly was both more political and less accessible to NGOs. Instead, this informal coalition was left with approaching the UN’s Commission on Human Rights (CHR).102 Working with the ICRC and UNHCR, this group prepared a draft resolution which called on the Commission to request the Secretary-General to prepare an analytical report on IDPs. As Bagshaw notes, the group did not expect that the issue would be taken up at that session of the Commission. Rather, “the statement was intended as a tool for engaging States in dialogue on the issue.”103 However, the Austrian delegate, Christian Strohal, seized the initiative and agreed to put forward the resolution, gaining 16 co-sponsors for it. The resolution was subsequently adopted by the CHR without a vote.104 In 1992, following the submission of the analytical report, the CHR requested the Secretary-General, Boutros Boutros-Ghali, to appoint a

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Representative of the Secretary-General on Internally Displaced Persons. He chose Francis Deng, who had served as the Minister of State for Foreign Affairs of the Sudan among other posts.105 As Deng notes: In my dialogue with governments . . . the first five minutes with the head of state is crucial to assure them of my recognition of the problem as internal and therefore under state responsibility. Having emphasized my respect for their sovereignty, I quickly move on to present the positive interpretation of sovereignty and the supportive role of international cooperation. Once I establish a cordial climate, candid and constructive dialogue can follow with little or no constraint in the name of sovereignty.106 Deng was well positioned to act as a norm entrepreneur. His efforts were also assisted by high officials within the UN system, including Sadako Ogata, the UN High Commissioner for Refugees,107 and a number of NGOs including the US Committee on Refugees108 and the Norwegian Refugee Council (NRC), which would create an IDP Project and then the IDMC. Deng also created a project within the Brookings Institution on Internal Displacement with Roberta Cohen, a senior fellow at the Brookings Institution and the former US Deputy Assistant Secretary of State for Human Rights.109 Soon after his appointment, Deng was asked by the CHR110 to study the status of the internally displaced in international law and ways in which to improve protection and assistance for them. To further this, two studies were prepared: one by the Austrian government under the direction of Professor Mandred Nowak, the other by Robert Goldman, an American legal expert. Following consultations with some 22 legal experts, including the chief legal officers of UNHCR, ICRC, and the International Organization for Migration (IOM), Deng asked Walter Kälin, a Swiss professor of constitutional and international law at the University of Bern, to work with both groups to merge the two documents.111 These studies opened the door to create the Guiding Principles and to thereby provide IDPs with a clear statement of the legal protections owed to them. The team determined that existing international humanitarian and human rights law and analogous refugee law did provide substantial coverage for the internally displaced. However, there were also areas where existing law failed to provide sufficient protection: Some weaknesses relate to the need for an expressed right to not be unlawfully displaced, to have access to protection and assistance during displacement, and to enjoy a secure return and reintegration. There are also gaps in legal protection relating to personal documentation

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for the internally displaced or restitution or compensation for property lost during displacement. And although there is a general norm for freedom of movement, there is no explicit right to find refuge in a safe part of the country nor an explicit guarantee against forcible return of internally displaced persons to places of danger.112 These findings triggered an important change. Organizations which “had previously opposed the creation of a new instrument . . . came to admit that the existence of such a protection gap nevertheless required some action.”113 The principles served to “facilitate a better understanding and application of existing international law relevant to internally displaced persons and to stimulate enhanced international, regional and national responses to their needs.”114 In so doing, they successfully put forward the need for international protection, as well as assistance, to IDPs. The content of the Guiding Principles has been discussed in detail in Chapter 2. But it is important to note that while they are soft law, they were very quickly recognized by a range of international and regional actors. The CHR was the first body to do so, in 1998, by taking note of the Principles and Deng’s efforts to make use of them.115 Cohen notes that the “taking note” language was deliberate, steering “the resolution away from calling for the circulation of the Principles to governments and international organizations for comment, which could have held up, complicated, and undermined their acceptance.”116 The resolution was adopted by consensus with 55 co-sponsors, though at the time concerns were raised that this introduced a danger of “standard setting by the back door,” a problem that was repeatedly raised by states around the Principles.117 Within the CHR, incremental changes in a succession of resolutions gradually strengthened this support. In 2000, the CHR adopted stronger wording, welcoming that the Representative, as well as UN agencies and other organizations, was using the Guiding Principles.118 In 2002, the CHR not only welcomed their dissemination and use by states, but also expressed its appreciation of them as an “important tool for dealing with situations of internal displacement.”119 That year, the General Assembly also welcomed the use and dissemination of the Principles, and references to the Guiding Principles henceforth occurred in each resolution on IDPs.120 In 2004, the General Assembly expressed its appreciation of the Guiding Principles as an important tool for dealing with situations of internal displacement, welcomed that states, UN agencies, and NGOs were applying them as a standard, and encouraged “all relevant actors” to make use of them.121 Then, in 2005, in the World Summit Outcome Document, the member states of the UN recognized

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“the Guiding Principles on Internal Displacement as an important international framework for the protection of internally displaced persons and resolve to take effective measures to increase the protection of internally displaced persons.”122 Such language continues to be used in the biannual resolutions on internal displacement and on emergency humanitarian assistance and have also used the Principles’ definition of IDPs.123 Some resolutions have gone even further—in 2011, in a resolution on the status of IDPs and refugees in Georgia, the General Assembly recognized the Principles as “the key international framework for the protection of internally displaced persons.”124 As noted in Chapter 2, the Principles have also been recognized by a range of regional and sub-regional organizations, include the OSCE, the Economic Community of West African States (ECOWAS), the Intergovernmental Authority on Development (IGAD), the Organization of American States (OAS), the Parliamentary Assembly of the Council of Europe and, most notable, the African Union through the Kampala Convention.125 As we will see in Chapters 7 through 9, a range of states have also used the Guiding Principles to create their own domestic legislation and policies. At the same time, these regional organizations now routinely refer to the Guiding Principles when investigating IDPs situations in individual states. This is not to say there has been no resistance to this process. In the years after the Guiding Principles were first so recognized, a number of states including China, Egypt, India, and Sudan were vocal critics of the soft law process that led to the creation of the guiding principles, which some suggestions that they fear “humanitarian action could be a cover for the interference of powerful countries in the affairs of weaker states.”126 India, for example, asserted that the principles were not legally binding and that international action should be with the consent of the country concerned.127 In the 2001 General Assembly debate, China argued that “the Guiding Principles are not United Nations principles because they have not been officially adopted by the United Nations,” as did Egypt and Syria.128 However, this opposition centered on the form the Guiding Principles have taken, rather than their content. Thus, in the 2009 debate, the only country to object to the Guiding Principles was Sudan, and its representative noted only that “his delegation would have preferred the draft resolution to refer to international instruments and did not consider itself bound by any language or definition that came from documents that had not been universally ratified.”129 In the most recent two debates, no states voiced such concerns, reflecting the now-widespread recognition and support for the Guiding Principles.130

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Conclusion This chapter has examined how two international norms have developed around the issue of internal displacement. The first was one of IDP assistance. It developed—and remains—as principle norm, focused on a twostep process whereby either states or the United Nations requested UNHCR to provide assistance to IDPs outside of its mandate. By the late 1970s, this reflected a clear pattern of practice within the United Nations, accepted not only by UNHCR but also by the General Assembly. The practice lagged in the 1980s, reflecting a shift in focus within UNHCR, but individual instances surged again in the late 1980s alongside the growth of IDP numbers globally. This view of IDP assistance was formalized within the UN system through Resolution 46/182, even though concerns over sovereignty prevented IDPs from being noted within that resolution. But by 1991 when Resolution 46/182 was introduced, this limited provision of assistance to IDPs by UNHCR was not only longer enough. A series of international conferences had argued that the UN needed to also provide IDPs with some form of protection; this issue became even clearer with the aftermath of the Gulf War. This led to the creation of the mandate of the Representative of the Secretary-General who, in turn, created the Guiding Principles on Internal Displacement, a restatement of existing international law which focused on both the assistance and protection of internally displaced persons. But the Guiding Principles were not the only action the UN took. In the next chapter, I examine institutional and peacekeeping efforts within the UN system to better protect the internally displaced.

Notes 1 United Nations, “Charter of the United Nations,” Art. 2(7). 2 The Statutes of the International Red Cross and Red Crescent Movement establishes the ICRC has a role to “work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law” and to “ensure the protection of and assistance to military and civilian victims” of international and other armed conflicts or internal strife. “Statutes of the International Red Cross and Red Crescent Movement,” Art. 5(2). On the role of normative grafting, see Price, “Reversing the Gun Sights.” 3 Loescher, The UNHCR and World Politics; Orchard, A Right to Flee, 189–200. 4 Loescher, The UNHCR and World Politics, 144. 5 Robert E. Gribbin, “Two Relief Crises: Biafra and Sudan,” Africa Today (1973): 49. 6 Nathaniel H. Goetz, Humanitarian Issues in the Biafra Conflict (Geneva: United Nations High Commissioner for Refugees (UNHCR), 2001), 4. 7 Loescher, The UNHCR and World Politics, 145.

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8 R. J. Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (New Haven: Yale University Press, 2007), 572; R. J. Rummel, Death by Government (New Brunswick: Transaction Publishers, 1997), 315. 9 Memorandum of Conversation, “UN Role in East Pakistan,” USNARA, RG59, POL 27–14 India-Pak/UN 8-10-71, 9 Aug. 1971, 2. 10 Nicolas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), 59. 11 Phil Orchard, “Humanitarian Intervention and the Legacies of Security Council (in)Action: East Pakistan (1971) and East Timor (1975–1979),” in Genocide and Mass Atrocities in Asia, ed. Deborah Mayersen and Annie Pohlman (London: Routledge, 2013). 12 UNHCR, “Statement by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, to the United Nations Economic and Social Council (ECOSOC),” Geneva, 16 July 1971. 13 Gidon Gottlieb, “The United Nations and Emergency Humanitarian Assistance in India-Pakistan,” American Journal of International Law 66, no. 2 (1972): 363. 14 UNHCR, “Opening Statement by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, to the Executive Committee,” 4 Oct. 1971. 15 UNGA Resolution 2790 (XXVI), “United Nations Assistance to East Pakistan Refugees through the United Nations Focal Point and United Nations Humanitarian Assistance to East Pakistan,” 6 Dec. 1971. See also Mr. Stavropoulos UN GAOR, “Plenary Meeting, 2001st Meeting,” 6 Dec. 1971, 11–12. 16 UNGA Resolution 2790 (XXVI), “United Nations Assistance to East Pakistan Refugees through the United Nations Focal Point and United Nations Humanitarian Assistance to East Pakistan,” 84. 17 See, for example, Lord Gowrie (United Kingdom), “UN GAOR, Third Committee, 1876th Meeting,” 18 Nov. 1971, 326; Mr. Scott (New Zealand), “UN GAOR, Third Committee, 1877th Meeting,” 18 Nov. 1971, 333. 18 Gottlieb, “The United Nations and Emergency Humanitarian Assistance in India-Pakistan,” 363. 19 UNGA, “Report of the Secretary-General Concerning the Implementation of General Assembly Resolution 2790 (XXVI) and UNSC Resolution 307 (1971),” A/8662, 15 Feb. 1972; David Myard, “Sadruddin Aga Khan and the 1971 East Pakistani Crisis,” in Global Migration Research Paper (Geneva: Programme for the Study of Global Migration, Graduate Institute of International and Development Studies, 2010), 43. 20 UNHCR, UNHCR’s Operational Experience with Internally Displaced Persons (Geneva: UNHCR, 1994), 3. 21 UNHCR, “Statement by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, to the Meeting with Representatives of Members of the Executive Committee of the High Commissioner’s Program (ExCom), Geneva, 27 June 1972.” See also Louise W. Holborn, “The Repatriation and Resettlement of the Southern Sudanese,” Issue: A Journal of Opinion 2, no. 4 (1972). 22 UNGA, Resolution 2956 (XXVII), “Report of the United Nations High Commissioner for Refugees,” 12 Dec. 1972. 23 UNGA, Resolution 2958 (XXVII), “Assistance to Sudanese Refugees Returning from Abroad,” 12 Dec. 1972.

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24 UNHCR, “UNHCR’s Operational Experience with Internally Displaced Persons,” 4. 25 Sadruddin, “Lectures by Sadruddin Aga Khan on Legal Problems Relating to Refugees and Displaced Persons Given at the Hague Academy of International Law”; Holborn, “The Repatriation and Resettlement of the Southern Sudanese,” 25. 26 UNGA, Resolution 3271 (XXIX), “Report of the United Nations High Commissioner for Refugees,” 10 Dec. 1972; Ivor C. Jackson, The Refugee Concept in Group Situations (The Hague: Martinus Nijhoff Publishers, 1999), 230. 27 UNHCR, “UNHCR’s Operational Experience with Internally Displaced Persons,” 4–5; Jackson, The Refugee Concept in Group Situations, 231. 28 UNHCR, “Statement by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, to the Third Committee of the United Nations General Assembly (Twenty-Ninth Session),” 25 Nov 1974. 29 UNHCR, “Statement by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, to UNHCR Headquarters Staff, 30 January 1975,” my emphasis. 30 UNHCR, “Opening Statement by Prince Sadruddin Aga Khan, United Nations High Commissioner for Refugees, to the Executive Committee of the High Commissioner’s Program, Twenty-Fifth Session, Geneva, 14 October 1974.” 31 Jackson, The Refugee Concept in Group Situations, 319. 32 Davies, Legitimising Rejection, 13, 91–2; Loescher, The UNHCR and World Politics, 190–1. 33 Jackson, The Refugee Concept in Group Situations, 233. 34 ECOSOC, Resolution 2011 (LXI), “Report of the United Nations High Commissioner for Refugees,” 2 Aug. 1976. 35 Goodwin-Gill and McAdam, The Refugee in International Law, 28. 36 UNGA Resolution 34/60, “Report of the United Nations High Commissioner for Refugees,” 29 Nov. 1979. 37 Jackson, The Refugee Concept in Group Situations, 422, his emphasis. 38 Hull, “Displaced Persons,” 756. 39 Jackson, The Refugee Concept in Group Situations, 425–6. Thus, UNGA Resolution 38/121, adopted on 16 Dec. 1983, includes preambular references to the problems of refugees and displaced persons, but it only urges states, in cooperation with UNHCR, “To Take All Measures Necessary to Ensure the Safety of Refugees and Asylum Seekers.” It does, however, call on states to support UNHCR’s humanitarian programs to assist refugees and displaced persons. 40 David Lanz, “Subversion or Reinvention? Dilemmas and Debates in the Context of UNHCR’s Increasing Involvement with IDPs,” Journal of Refugee Studies 21, no. 2 (2008): 5. 41 UNHCR, “UNHCR’s Operational Experience with Internally Displaced Persons,” 5–6. 42 Ibid., 8. 43 Sadruddin Aga Khan and Hassan Bin Talal, Refugees: The Dynamics of Displacement: A Report for the Independent Commission on International Humanitarian Issues (London: Zed Books, 1986), 120. 44 UNHCR, “Addendum to the Report of the United Nations High Commissioner for Refugees,” A/36/12/Add.1, 21 Oct. 1981, www.refworld.org/docid/ 3ae68c360.html, para 16. The issue of man-made versus natural disaster was

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a key concern of Hartling’s. He argued in a 1979 article that while the General Assembly had called on UNHCR to undertake assistance activities with respect to IDPs, he noted that “this enlarged competence of the High Commissioner to assist displaced persons is understood to concern ‘victims of manmade disasters,’ as distinct from victims of natural catastrophes” Poul Hartling, “Concept and Definition of ‘Refugee’: Legal and Humanitarian Aspects,” Nordic Journal of International Law 48, no. 1 (1979): 135. UNGA, “Situation of Human Rights and Fundamental Freedoms in El Salvador,” A/RES/40/139, 13 Dec. 1985. UNGA, “International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa: Report of the Secretary-General,” A/44/520, 28 Sept. 1989, 17. UNHCR, “UNHCR’s Operational Experience with Internally Displaced Persons,” 6–7. UNGA, “Assistance to Refugees and Displaced Persons in Malawi,” A/RES/ 42/132, 7 Dec. 1987. UNHCR, Background Paper on Sri Lanka for the European Union High Level Working Group on Asylum and Migration (Geneva: UNHCR, 1999), 21. Jennifer Hyndman, “Preventive, Palliative, or Punitive? Safe Spaces in BosniaHerzegovina, Somalia, and Sri Lanka,” Journal of Refugee Studies 16, no. 2 (2003): 180; Phil Orchard, “Revisiting Humanitarian Safe Areas for Civilian Protection,” Global Governance 20, no. 1 (2014): 60. Cohen and Deng, Masses in Flight, 3. Khan and Talal, Refugees, 120. Ibid., 123. Ibid., 120–2. IFRC, “Resolution XXI, International Red Cross Aid to Refugees,” Manila, 1981. www.refworld.org/docid/48abd5370.html; Françoise Krill, “The ICRC’s Policy on Refugees and Internally Displaced Civilians,” International Review of the Red Cross 83, no. 843 (2001): 611–12. IFRC, “Resolution XVII, The Movement and Refugees,” Geneva, 1986, www. icrc.org/eng/resources/documents/article/other/57jmdl.htm. This was reinforced by a further resolution in 1995, which called upon states to provide humanitarian assistance to IDPs and to ensure access for humanitarian organizations. IFRC, “Resolution 4: Principles and Action in International Humanitarian Assistance and Protection,” Geneva, Dec. 1995, www.icrc.org/eng/ resources/documents/resolution/26-international-conference-resolu tion-41995.htm. UNGA, “International Conference on the Plight of Refugees, Returnees, and Displaced Persons in Southern Africa: Report of the Secretary-General,” A/ 43/717, 19 Oct. 1988, www.refworld.org/docid/3ae68f410.html. Simon Bagshaw, Developing a Normative Framework for the Protection of Internally Displaced Persons (Ardsley, NY: Transnational Publishers, Inc., 2005), 72–3; OCHA, Internal Displacement Unit, No Refuge: The Challenge of Internal Displacement (Geneva: United Nations Publications, 2003), 20; UNHCR, “Review of the CIREFCA Process,” 1 May 1994, www.unhcr.org/ cgi-bin/texis/vtx/search?page=search&docid=3bd410804&query=Review% 20of%20the%20CIREFCA%20Proces. Bagshaw, Developing a Normative Framework for the Protection of Internally Displaced Persons, 72; Weiss and Korn, Internal Displacement, 16.

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60 UNGA, “International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa: Report of the Secretary-General,” A/ 44/520, 28 Sept. 1989, 18. 61 UNHCR ExCom, “Conclusion No. 56 (XL) Durable Solutions and Refugee Protection,” 1989. 62 UNHCR, “Report of the Working Group on Solutions and Protection to the Forty-Second Session of the Executive Committee of the High Commissioner’s Program,” EC/SCP/64, 12 Aug. 1991, 3. 63 Ibid., 8. 64 Ibid., 8–9. 65 Ibid., 9. 66 UN ECOSOC Resolution 1990/78, “Refugees, Displaced Persons and Returnees,” 27 July 1990. This followed a request to the ECOSOC from UNDP’s Governing Council. 67 UN ECOSOC, “Coordination Questions, Annex: Report on Refugees, Displaced Persons and Returnees, prepared by Mr. Jacques Cuénod,” E/1991/ 109/Add.1, 27 June 1991, 33. 68 Ibid., 33. 69 Ibid., 34. 70 Ibid., 36. 71 Ibid., 36–9. 72 Phil Orchard, “Regime-Induced Displacement and Decision-Making within the United Nations Security Council: The Cases of Northern Iraq, Kosovo, and Darfur,” Global Responsibility to Protect 2, no. 1 (2010). 73 US Committee for Refugees, “April Is the Cruellest Month: The Flight of the Iraqi Refugees,” Refugee Reports 12 (Mar.–Apr. 1991), 1. 74 Thomas G. Weiss, Military-Civilian Interactions: Intervening in Humanitarian Crises (Lanham: Rowman & Littlefield, 1999), 50. 75 Bruce Cronin, “International Consensus and the Changing Legal Authority of the UN Security Council,” in The UN Security Council and the Politics of International Authority, ed. Bruce Cronin and Ian Hurd (London: Routledge, 2008), 72. 76 Carrie Booth Walling, All Necessary Measures: The United Nations and Humanitarian Intervention (Philadelphia: University of Pennsylvania Press, 2013), 36. 77 Letter from the Turkish Ambassador to the President of the Security Council (S/22435, 2 Apr. 1991); see also Jane E. Stromseth, “Iraq’s Repression of Its Civilian Population: Collective Responses and Continuing Challenges,” in Enforcing Restraint: Collective Intervention in Internal Conflicts, ed. Lore F. Danrosch (New York: Council on Foreign Affairs, 1993), 85. 78 George H. W. Bush, “Presidential Library Telcon with Turgut Ozal, President of Turkey on April 2, 1991,” https://bush41library.tamu.edu/files/memconstelcons/1991-04-02-Ozal.pdf, 1. 79 Rochereau de La Sabliere (France), S/PV.2981, 3 Apr. 1991, 94. 80 UNSC Resolution 688, 5 Apr. 1991. 81 Walling, All Necessary Measures, 36. 82 UNSC Resolution 688, 5 Apr. 1991. 83 David M. Malone, The International Struggle over Iraq: Politics in the UN Security Council 1980–2005 (Oxford: Oxford University Press, 2006), 86–7. 84 Rochereau de al Sabliere (France), S.PV/2982, 5 Apr. 1991, 53–4.

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85 Askin (Turkey), S.PV/2982, 5 Apr. 1991, 6. This claim was echoed by the Soviet and Ecuadoran ambassadors. See also Vorontsov (USSR). Ibid., 61; Ayala Lasso (Ecuador), ibid., 36. 86 Kharrazi (Iran), ibid., 13. 87 Al-Ashtal (Yemen), ibid., 27. 88 Zenenga (Zimbabwe), ibid., 31. 89 Alarcon de Quesada (Cuba), ibid., 46. 90 Al-Anbari (Iraq), ibid., 17. 91 Malone, International Struggle over Iraq, 86–7. 92 Li Daoyu (China), S.PV/2982, 54–5. 93 Refugee Policy Group, “Human Rights Protection for Internally Displaced Persons: An International Conference, June 24–25 1991, Conference Report,” 9. 94 Refugee Policy Group, Internally Displaced Persons in Africa: Assistance Challenges and Opportunities (Washington, DC: Refugee Policy Group, 1992), 15. 95 United Nations General Assembly Resolution, “Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations,” A/ RES/46/182, 19 Dec. 1991, Annex I. 96 OCHA Internal Displacement Unit, No Refuge, 20–1; Weiss and Korn, Internal Displacement. 97 Refugee Policy Group, Internally Displaced Persons in Africa, 48. 98 Ibid., 49. 99 Ibid., 50. 100 Weiss and Korn, Internal Displacement, 80. 101 Lanz, “Subversion or Reinvention? Dilemmas and Debates in the Context of UNHCR’s Increasing Involvement with IDPs,” 6. 102 Bagshaw, Developing a Normative FrameWork for the Protection of Internally Displaced Persons, 75–6; Roberta Cohen, “Lessons Learned from the Development of the Guiding Principles on Internal Displacement,” The Crisis Migration Project. Working Paper, Oct. 2013, http://issuu. com/georgetownsfs/docs/isim_working_paper_series_-_roberta, 3. 103 Bagshaw, Developing a Normative Framework for the Protection of Internally Displaced Persons, 76. 104 Weiss and Korn, Internal Displacement, 22–3. 105 Francis M. Deng, “The Global Challenge of Internal Displacement,” Washington University Journal of Law and Policy no. 5 (2001): 141. 106 Ibid., 145. 107 Sadako Ogata, “Foreword,” in The State of the World’s Refugees (Geneva: UNHCR, 1996), xi. 108 Bill Frelick, “Aliens in Their Own Land: Protection and Durable Solutions for Internally Displaced Persons,” in World Refugee Survey, 1998 (Washington, DC: US. Committee for Refugees, 1998). 109 Weiss and Korn, Internal Displacement. 110 While the resolution (CHR 1993/95) passed unopposed, some states, including Sudan, voiced concerns over the issue of state sovereignty Bagshaw, Developing a Normative Framework for the Protection of Internally Displaced Persons, 81. 111 For a fuller discussion of the two studies, see Weiss and Korn, Internal Displacement, 57–60; Francis Mading Deng, “Introductory Note by the Representative of the Secretary-General on Internally Displaced Persons,” in Guiding Principles on Internal Displacement, ed. Office for the Coordination of Humanitarian Affairs (New York: UNOCHA, 1999), iii.

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112 Cohen and Deng, Masses in Flight, 74. 113 Phuong, The International Protection of Internally Displaced Persons, 53. 114 Brookings Institution Project on Internal Displacement, Summary Report of the International Colloquy on the Guiding Principles on Internal Displacement, Vienna, Austria, September (Washington, DC: The Brookings Institution, 2000). 115 CHR Resolution 1998/50, “Internally Displaced Persons,” 17 Apr. 1998. 116 Cohen, “Lessons Learned from the Development of the Guiding Principles on Internal Displacement,” 4. 117 Bagshaw, Developing a Normative Framework for the Protection of Internally Displaced Persons, 134. 118 CHR Resolution 2000/53, “Internally Displaced Persons,” 25 Apr. 2000. 119 CHR Resolution 2002/56, “Internally Displaced Persons,” 25 Apr. 2002. The Human Rights Council (HRC) has adopted similar language. HRC Resolution 6/32, “Mandate of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons,” 14 Dec. 2007. 120 UNGA Resolution, “Protection of and Assistance to Internally Displaced Persons,” A/RES/56/164, 20 Feb. 2002. 121 Ibid., A/RES/58/177, 12 Mar. 2004. 122 UNGA Resolution 60/1, “World Summit Outcome,” 24 Oct. 2005, 19. 123 The most recent references are in UNGA Resolutions, “Protection of and Assistance to Internally Displaced Persons,” A/RES/70/165, 17 Dec. 2015; “Strengthening of the Coordination of Emergency Humanitarian Assistance of the United Nations,” A/RES/69/135, 19 Jan. 2015. 124 UNGA Resolution, “Status of Internally Displaced Persons and Refugees from Abkhazia, Georgia, and the Tskhinvali Region/South Ossetia, Georgia,” A/RES/65/287, 25 Oct. 2011, 1. 125 Mooney, “The Concept of Internal Displacment and the Case for Internally Displaced Persons as a Category of Concern,” 166; Cohen, “The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting”; See also CHR, “Report of the Representative of the SecretaryGeneral on the Human Rights of Internally Displaced Persons, Walter Kälin,” E/CN.4/2006/71, 17 Jan. 2006, 18; HRC, “Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin,” A/HRC/10/13, 9 Feb. 2009, 4–5. 126 Roberta Cohen, “Nowhere to Run, No Place to Hide,” Bulletin of the Atomic Scientists (1 Nov. 2002): 40–1. 127 Roberta Cohen, “Some Reflections on National and International Responsibility in Situations of Internal Displacement,” in Forced Migration in the South Asian Region: Displacement, Human Rights & Conflict Resolution, ed. O. Mishra (New Delhi: Jadavpur University and Manak, 2004), 4. 128 Ibid. See also UNGA Press Release GA/SHC/3676, 29 Nov. 2001. 129 GAOR, Third Committee, “Summary Record of the 42nd Meeting,” A/C.3/64/ SR.42, 12 Nov. 2009, 6. 130 See GAOR, Third Committee, “Summary Record of the 53rd Meeting,” A/C.3/70/SR.53, 23 Nov. 2015; General Assembly Third Committee, “Third Committee Approves 14 Draft Resolutions on Human Rights Defenders, Migrants, Girl Child amid Contentious Votes over Agreed Language, Additional Costs,” GA/SHC/4223, 20 Nov. 2017, www.un.org/press/en/2017/ gashc4223.doc.htm. In the 2017 debates, the government of Sudan had unsuccessfully sought to block a reference to the International Criminal Court.

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• • • •

The United Nations’ institutional response

Providing IDPs with assistance Peace operations and IDPs The Responsibility to Protect and IDPs Conclusion

The process which culminated in the Guiding Principles was paramount in clearly identifying and articulating the rights that IDPs had in international law. But alongside the development of the Guiding Principles, there remained the unanswered question of how the UN and wider humanitarian system should provide assistance and, then, protection to IDPs. A norm around the provision of assistance to states with the consent of their governments had by the 1990s been clearly established while a norm of IDP protection emerged with the Guiding Principles. Neither of these are formal treaty norms, but instead are principle norms. But, as noted in Chapter 1, international norms need to go through a process of implementation within states and within organizations before they become internalized. The fact that these norms are principles rather than treaty-based and that the IDP protection regime remains informal have had significant consequences for the development of policy norms within the UN. The focus of this chapter, therefore, is how the UN system has evolved policy norms to response to the problem of internal displacement. I explore three different elements. The first is how the UN’s humanitarian system has gone through three attempts to create a sustainable system to respond to internal displacement, culminating in the cluster approach, which was introduced in 2005. The second is how peacekeeping doctrine has gradually evolved to see IDPs become a core concern in peacekeeping mandates, and a key element of the Protection of Civilians Agenda. The third is how the Responsibility to Protect doctrine, adopted by the UN in 2005, provides an alternative understanding to sovereignty and to state responsibilities toward their own population, thereby providing an additional form of protection for IDPs.

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As we will see, while IDPs have been an integral part of the development of each of these approaches, each also draws in other groups and, at a structural level, other regimes. IDP assistance interacts with wider norms associated with humanitarian assistance, peacekeeping doctrine focuses on civilians first, and the R2P focuses on a specific set of crimes. The international response has improved since the early 1990s, when The New York Times memorably described the IDPs of Bosnia as “the well-fed dead.”1 But these linkages between the IDP protection regime on the one hand and other, more established, regimes on the other have frequently left IDPs under-assisted, under-protected, and forgotten.

Providing IDPs with assistance Following Deng’s appointment as RSG, there remained the issue of how the UN should respond institutionally to the problem of internal displacement. The 1992 Secretary-General’s Analytical Report on IDPs followed the Cuénod report in noting that the UN’s system needed wholesale revision. The Analytical Report highlighted that the lack of aid and protection for IDPs might “oblige them to seek refuge in neighboring countries” and that “providing internally displaced persons with aid and protection similar to those accorded to refugees . . . would be an effective and humane form of prevention.”2 The Report argued that improving this response “requires the creation of a focal point within the human rights system.”3 Deng, in his first report, echoed this, noting “there is still no mechanism in the United Nations human rights system whose mandate explicitly covers the protection needs of internally displaced persons.”4 Among the proposals made by states to respond to this issue, Guatemala suggested the establishment of a new United Nations Office for the Protection of Displaced Persons with both protection and assistance functions, while China suggested that UNHCR’s mandate be formally redefined to include IDPs. Similar support was received from a number of UN agencies and the NGO community.5 This led Deng to propose the establishment of a focal point on displaced persons within the UN human rights system.6 In the longer-term, he suggested that “it would be desirable for the United Nations either to explicitly mandate UNHCR or set up an equivalent body to cater more specifically to the needs of internally displaced persons.”7 The Commission on Human Rights endorsed the first proposal, with Deng requested to continue his work and identify “ways and means of improving protection for assistance to” IDPs, a call echoed by the General Assembly.8 However, Deng’s efforts to create a new UN agency or to assign the mandate to UNHCR both failed. Political will was against creating a new

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IO because it duplicated existing arrangements and costs would be substantial, and because it aroused opposition from governments and from other agencies.9 The alternative—assigning responsibility to UNHCR—also led to issues. UNHCR itself had concerns, with High Commissioner Sadako Ogata arguing that the “magnitude of the problem . . . far exceeds the capacity and resources of any single agency. It calls for a comprehensive and concerted effort of the United Nations and other humanitarian organizations.”10 This idea also triggered “a turf war among UN agencies unwilling to yield more power and responsibility to UNHCR.”11 Instead, incremental steps were taken. Following Kofi Annan’s program for reform in 1997, internal displacement became a permanent agenda item for the IASC, and the RSG’s office was made a standing member of the IASC.12 The following year, the IASC directed its members to appoint focal points to facilitate collaboration which led to the creation of a Senior Inter-Agency Network on Internal Displacement in 2000. OCHA also took steps to create a dedicated Internal Displacement Unit in 2002, which was upgraded to an Internal Displacement Division (IDD) in 2004.13 Defining protection While this “collaborative response” system was emerging, what protection itself meant for IDPs remained an open question. Deng’s first report had noted that while existing human rights, humanitarian, and refugee regimes had established “a basis for international concern with the problems faced by the internally displaced,” action had remained ad hoc and “tends to emphasize the assistance dimension, with human rights protection as a subsidiary consideration.”14 Deng raised the need to design principles and mechanisms as preventive measures against displacement, and the need to formulate standards (leading to the Guiding Principles) but also “enforcement mechanisms to provide adequate protection and assistance” to IDPs in line with their specific needs.15 As Roberta Cohen and Jacques Cuénod noted in a 1995 report: Protection, however, has yet to receive the attention it deserves from the international community. Although security is as overriding a priority as food in most situations of internal displacement, inter-agency needs assessments generally do not address the physical safety of the affected population or the dangers confronting them.16 However, when IDP protection was defined, a task assigned to the IASC, its view reflected primarily a legal understanding. Its 1999 policy paper on

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protection (as noted in the introduction) adopted the ICRC’s definition of protection: “The concept of protection encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law (i.e. HR law, IHL, refugee law).” The IASC justifies the choice as the definition is seen as “comprehensive in scope, both in terms of the legal framework for protection, (‘full respect’), and in terms of the strategies and methods by which protection may be achieved (‘all activities’).”17 In the policy, the IASC also called on its agencies to maintain the collaborative approach “in consultation with national and local authorities” but also argued that responsibility in the field to establish arrangements to protect IDPs rested with the UN Humanitarian or Resident Coordinator.18 This remains the core definition of IDP protection. As UNHCR’s Handbook for the Protection of Internally Displaced Persons notes following this definition, protection is both a legal responsibility, “principally of the State and its agents,” but also an activity “because action must be taken to ensure the enjoyment of rights.”19 More recently, the 2013 High Commissioner’s Dialogue on Protection Challenges anchored protection in a rights-based approach, noting that protection must both “take as a starting point that IDPs are ‘rights-holders’” but also that “IDP protection is primarily about supporting national protection. In case of internal displacement, while governments are bound to protect the rights of their citizens and habitual residents, the international community is called upon to support them in these efforts.”20 The shift to the cluster approach Even while the IASC was seeking to define IDP protection, there were increasing concerns that the collaborative approach was failing to adequately assist IDPs. In 2000, Richard Holbrooke, then the US Permanent Representative to the United Nations, launched a major critique of the system within the UN Security Council, noting that IDPs in Angola for the most part, they were out of reach of the international community’s assistance . . . what we must do is expand the definition of what is a refugee, erode—if not erase—the distinction between a refugee and a person who is internally displaced, deal with these problems, fix the responsibility more clearly in a single agency and not fall back on one of the worst of all euphemisms, “coordinate closely.”21 Subsequently, Holbrooke argued that “agencies are supposed to act together as ‘co-heads.’ In practice ‘co-heads’ means ‘no-heads.’”22 However,

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following the US Presidential election that year, Holbrooke was left “without a government platform from which to press that proposal.”23 By 2003, there were a number of critical reports being circulated within the UN advocating for the need to change how protection and humanitarian responses were undertaken. One report, by Simon Bagshaw and Diane Paul, argued that the UN’s approach to IDP protection was “still largely ad hoc and driven more by the personalities and convictions of individuals on the ground than by an institutional, system-wide agenda.” The report argued that it was critical that the senior levels of the UN needed to make it clear both to Humanitarian and Resident Coordinators as well as to governments that they had responsibilities to address IDP protection issues.24 The same year, an independent review of the then Internal Displacement Unit found that it had not had a significant impact on the UN, had failed to get UN humanitarian and Resident Coordinators to follow its recommendations, and that it was not “effective in reporting egregious failures of the system.”25 Finally, there was widespread views that the collaborative system had failed to assist IDPs in Darfur, Sudan, after the start of the civil war in 2003. One evaluation noted that “[t]he distinguishing feature of the Darfur crisis has been the lateness and inadequacy of the humanitarian response. It has been so serious that it amounted to ‘systemic failure.’”26 While a UN country team was present in Khartoum, there was no sense of urgency in its meetings until December 2003, and the same evaluation noted a “lack of leadership from the UN.”27 Overall, the humanitarian effort was delayed in part due to the remoteness and scale of Darfur, because the government ensured access was difficult, and because of other, higher profile emergencies in Afghanistan and Iraq.28 But the international response was also flawed. Walter Kälin, in an interview in 2005, noted that the collaborative approach has not worked well in Darfur . . . the problem in Darfur was that the collaborative approach allowed agencies to say “no” to playing specific roles, especially in the area of protection, and gave the Government the possibility to opt for solutions that it found the least threatening.29 These concerns led to a larger Humanitarian Response Review, commissioned by the then Emergency Relief Coordinator, Jan Egeland, which examined the humanitarian response to both complex emergencies and natural disasters.30 The review found not only that humanitarian organizations and donors acknowledged that the humanitarian response was “not good enough and that remedial action is needed” but also that improved accountability to beneficiaries was needed.31 The review proposed a

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wholesale overall of the system, with specific agencies within the UN system be made accountable for specific problem sectors or “clusters.” The cluster approach, it was argued at the time, would “provide muchneeded predictability and accountability for the collaborative response to IDPs.”32 While issues with the response to IDPs was “a key driving force” behind the establishment of the cluster approach, the system was not designed for internal displacement crises only.33 Each cluster is “a group comprising organizations and other stakeholders” with a designated lead agency, “working in an area of humanitarian response in which gaps in response have been identified.”34 The cluster leads ensure that there is adequate response capacity in place and that the approach thereby ensures predictable leadership. In addition, the view was that the cluster leads would be accountable to the Emergency Relief Coordinator at the global level and to the Humanitarian Coordinators at the field level. Specific UN agencies, along with key NGOs, have been given responsibilities for 11 clusters.35 This represented a significantly cultural shift on the part of the UN, because it included bringing in partner organizations beyond the main UN agencies to play key leadership roles. This included a key role for UNHCR as global cluster lead for protection in conflict situations, shelter, and camp management. However, UNHCR carefully positioned this role against its mandate for refugee protection, noting that while its involvement in internal situations “could be seized upon to ground measures on a national, bilateral or regional basis to keep internally displaced or other persons otherwise seeking asylum in neighboring countries strictly within national borders” it planned to systematically monitor all situations.36 In addition, while non-UN organizations including the IFRC and Save the Children assumed cluster lead roles, other NGOs—most notably Médecins Sans Frontières (MSF) and the ICRC—remained outside the system. MSF argues this was because the cluster framework subordinated humanitarian action to political strategies, while ICRC argued that it would require the organization to be accountable to the UN system and therefore inconsistent with its mandate.37 The cluster approach is designed to operate at two levels. At the global level, the focus is on capacity building including through better surge capacity, technical expertise, and material stockpiles. At the country level, individual country leads are responsible to the Humanitarian Coordinator to improve both coordination and accountability. The cluster leads are expected to play the role of provider of last resort within their areas of responsibility.38 It also expanded the role of in country UN Humanitarian Coordinators to monitor IDP needs. But has the cluster approach actually improved international efforts to protect and assist IDPs? Two major evaluations undertaken by the UN39

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found that while leadership, predictability, and the effectiveness of aid delivery have increased, accountability remains a major problem. In particular, clusters have excluded national and local actors, and had “in several cases weakened national and local ownership and capacities.”40 This is a major issue because, as Ferris and Ferro-Riberio note: The clusters that seem have been most successful are those in which host government agencies have taken the lead (such as in Ethiopia and the Philippines); the least successful are those with a multitude of international participants, weak cluster leadership, and confusion about roles.41 The cluster approach has now been used in over 30 countries. But leadership and coordination issues remain problematic. A review of the health cluster in Uganda, which was activated in 2005 and phased out in 2011, found that it was implemented in a top-down way that led to poor ownership by both national governments and non-UN stakeholders.42 A 2010 Human Rights Watch report in the Democratic Republic of Congo found that for four years after the cluster approach was introduced, the protection cluster has faced “major problems in conceptualizing and operationalizing IDP protection.”43 And, following the 2010 Port-au-Prince earthquake, Ferris and Ferro-Riberio similarly found that while international actors “managed to supply basic services and relief items” they spent “far too much time trying to define what protection was, and the definition that emerged—full respect for all human rights—was not helpful in setting priorities in an urban setting characterized by immense need.”44 At the same time, OCHA was unable to deal with the presence of thousands of new NGOs in the country responding to the crisis, which led to a “relief scenario that was scattered, poorly monitored, and accountable to no one.”45 In a 2014 report, Elizabeth Ferris suggests the cluster approach has improved the international response overall, but that three critical issues persist. The first is that the international community needs to maintain the visibility of IDPs in line with their specific needs. The second is that national authorities remain the key actors in preventing, responding to, and resolving internal displacement. International actors need to remember this, but also balance support to national governments with efforts to maintain their own independence and to support sub-national authorities and civil society actors outside of government.46 Finally, Ferris argues that within the cluster approach, while efforts to improve assistance have been successful, efforts to find solutions to displacement in general and, in particular, to protracted displacement are not being prioritized: “Although the protracted

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nature of displacement is widely lamented, there seems to be a paucity of creative thinking in coming up with ways for development and humanitarian actors to work together to find solutions.”47 The issues with the cluster approach have been acknowledged by the IASC, and beginning in 2011, the Committee launched a new “Transformative Agenda.” This introduced a new category of “level three emergencies,” which would occur when a humanitarian situation suddenly and significantly shifts. A level three response can be activated by the IASC following an analysis of five criteria in the situation—its scale, complexity, urgency, capacity, and also the potential reputational risk to humanitarian organizations and responders if the response is inadequate.48 In addition, through “empowered leadership,” Humanitarian Coordinators are given additional authority during the immediate response to ensure that “as a first priority lives are saved, and people get the assistance and the protection they need; and as a second priority the effects of the crisis on human development are to be contained.” This authority lets the Humanitarian Coordinator take decisions on behalf of the humanitarian country team when there is no consensus or delayed decision-making, to ensure they have access to all key information, and to ensure the accountability of all partners—not just UN—for the overall response.49 Finally, the third mechanism focused on improving the use of the cluster mechanism. This reflected new roles criteria around when clusters should be activated in a less automatic and more time limited manner and that this should only occur when “there is an identified gap.”50 It also established guidelines around participation in the cluster, noting that at minimum organizations needed to commit to humanitarian principles, to mainstream protection in their program delivery, to improve accountability to affected populations, and to actively participate within the cluster.51 A 2016 review found that these steps had helped to strengthen leadership, coordination, and accountability, but raised three ongoing issues. While empowered leadership had led to improvements, in part because of improvements to the pool of Humanitarian Coordinators who could quickly be assigned to a level three emergency, only two Humanitarian Coordinators had actually exercised their new formal authority.52 Finally, there is little evidence that the cluster approach has improved direct accountability to the affected populations (AAP) themselves. As the review noted: The overwhelming majority of interviewees identified [as the area showing least progress within the Transformative Agenda]. Very few [Humanitarian Country Teams] developed AAP frameworks and action plans, and the ones developed at the global level were operationally irrelevant for teams on the ground . . . AAP was variously called a

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Transformative Agenda “failure,” an “afterthought” and the “elephant in the room.”53 There is no question that the cluster approach represents a significant improvement from the previous collaborative response in that there are clear coordination and accountability mechanisms at the field and global levels which simply did not previously exist. But the cluster approach remains limited as well along three dimensions. The first is that it cannot replicate a single lead agency. While UNHCR has played an important role with respect to the IDP protection cluster, as refugee numbers have expanded globally, its focus has returned to refugee protection. In the field, coordination and leadership issues within and across the clusters remain and—now 12 years after the approach was introduced—are unlikely to ever be solved under this model. The second, as we will see in the next three chapters, is that there is little linkage between the cluster plans and the creation of domestic legislation and policies in specific countries. This reflects the lack of involvement of government actors and other domestic-level stakeholders such as civil society within the cluster approach. This was echoed by OCHA in 2017, which noted in a report on the outcomes from the World Humanitarian Summit that “IDPs are not often considered as a priority by concerned Governments, and complex institutional arrangements to deal with this issue incountry can impede progress.”54 Beyond governments, the third, and final issue, is that operations under the cluster approach have only limited accountability to the affected populations they are supposed to help, including IDPs.

Peace operations and IDPs The other approach the UN has used to provide IDPs with protection is through peace operations. Initial efforts to do so in the 1990s tended to adopt safe areas as an approach. As noted in Chapter 4, the US- and UK-led Operation Provide Comfort provided a clear example of how military forces could be used to protect an internally displaced population and to negotiate a peaceful outcome to the situation that had caused them to flee. While that operation was precedential in terms of UN Security Council activities toward IDPs, it was also significant because the safe area was created in response to a border closure by Turkey, which closed off the possibility of the Iraqi Kurds instead seeking asylum. This is a significant issue with this form of protection. As I have argued elsewhere, the safe areas in the 1990s “reinforced the containment agenda being driven by developed states by establishing a logic through which

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would-be refugees in effect lost the option to seek asylum.” UNHCR specifically raised this as a concern, noting that

At the time,

In-country protection, e.g., through the establishment of internationally guaranteed safe zones, however, needs to be weighed against the rights of individuals to leave their own country, to seek and enjoy asylum or return on a voluntary basis, and not be compelled to remain in a territory where life, liberty, or physical integrity is threatened.56 And yet, the following year, the then US Secretary of State Lawrence Eagleburger argued that with respect to the Bosnian War, “we must also funnel humanitarian assistance to hundreds of thousands more who are besieged inside Bosnia, so that they do not become the next wave of refugees.”57 In 1993, as UNHCR became more involved in providing assistance into that conflict, the Office, too, shifted its position, arguing that the objective of prevention is not to obstruct escape from danger or from an intolerable situation, but to make flight unnecessary by removing or alleviating the conditions that force people to flee. Defending the right to remain does not in any way negate the right to seek and to enjoy asylum.58 But UN peacekeepers continued to operate under traditional peacekeeping’s holy trinity, reflecting the need for peacekeepers to remain impartial and neutral toward belligerents, that the use of force should be minimal and occur only for self-defense or protection of the mandate, and the need to preserve consent.59 As O’Neill notes, “Unfortunately, in the early 1990s, the Council used the model of traditional peacekeeping for these new types of conflicts, with disastrous results for everyone.”60 In Rwanda, UN Assistance Mission in Rwanda (UNAMIR) forces, while formally reduced down to 270 troops during the genocide (444 troops actually stayed), were able to protect some 15 to 20 thousand internally displaced Rwandans through their presence. Suhrke notes, however, that “it is also clear that the UN force had little capacity, and mostly assigned lowest priority, to protecting ordinary Rwandan civilians .”61 In Bosnia, the UN peacekeeping mission—named the UN Protection Force (UNPROFOR)—had no explicit protection mandate but was created under traditional peacekeeping auspices.62 This limited mandate applied even as UNPROFOR’s mandate was expanded to include first protection to Sarajevo airport, then to assist in the delivery of humanitarian assistance, and finally to protect UNHCR’s convoys.63 This mandate was then further extended in April 1992 when the Security Council explicitly

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authorized that the Bosnian town of Srebrenica be established as “a safe area which should be free from any armed attack or any other hostile action,”64 a concept then extended to Sarajevo, Tuzla, and four other Bosnian towns.65 UNPROFOR, Durch, and Schear note, “became an increasingly Orwellian exercise in which safe areas were not safe, protection was extended to food but not people, and the vicious customs of war in the Balkans were condemned without consequence to the perpetrator.”66 Srebrenica itself fell to the Bosnian Serbs in July 1995 with the genocidal deaths of 8,372 Bosnian Muslims men and boys. As SecretaryGeneral Kofi Annan noted in a 1999 report, “When the international community makes a solemn promise to safeguard and protect innocent civilians from massacre, then it must be willing to back its promise with the necessary means.”67 The following year, the Brahimi Report on Peace Operations redefined how peacekeepers should protect civilians—and, by inference, IDPs—by arguing that “United Nations peacekeepers—troops or police—who witness violence against civilians should be presumed to be authorized to stop it, within their means, in support of basic United Nations principles.”68 This alternative became framed within the Protection of Civilians agenda, with Security Council Resolution 1296 establishing that the Council would ensure “where appropriate and feasible, that peacekeeping missions are given suitable mandates and adequate resources to protect civilians under imminent threat of physical danger.”69 The past decade has seen the widespread integration of the Protection of Civilians agenda into peacekeeping operations. This shift has meant that approximately half of current and all new missions “are now mandated by the Security Council to protect civilians under imminent threat of physical violence.”70 As the Protection of Civilians agenda has developed, within its thematic resolutions the Council has highlighted the protection issues of IDPs as one of the core elements, alongside the protection mandates of peacekeeping operations, humanitarian access, and compliance with international law.71 The UN Security Council frequently refers to IDPs in peacekeeping mandate resolutions. Weerasinghe and Ferris find that the most common set of issues discussed is that peacekeepers will “facilitate and support the return of IDPs,” including through the creation of secure environments and other conditions conducive to return.72 Such a view is reflected, for example, in the Council’s 2014 resolution extending the mandate of the UN Mission in South Sudan (UNMISS) which included an authorization for the mission to “use all necessary means . . . To foster a secure environment for the eventual safe and voluntary return of internally displaced persons (IDPs) and refugees.”73

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However, the Council has also begun to acknowledge international and peacekeeper support for other forms of durable solutions as well. While the Council had acknowledged government efforts to support durable solutions for IDPs,74 it did not initially tie this to international efforts. In 2011, however, the Council affirmed that the UN Assistance Mission in Afghanistan would support the Afghan government in creating conditions “conducive to the voluntary, safe, dignified and sustainable return of refugees and internally displaced persons,”75 and in 2014, it expressed support for the government of Côte d’Ivoire’s efforts to implement a national durable solution strategy for IDPs.76 Only with a resolution reauthorizing the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) in 2015 did the Council directly link IDP durable solutions with a peacekeeping mandate. That resolution decided that MINUSCA’s mandate included enhancing civil-military coordination within MINUSCA and improved coordination with humanitarian actors in order to create a secure environment which would allow for the “the voluntary safe, dignified and sustainable return or local integration or resettlement of internally displaced persons or refugees in close coordination with humanitarian actors.”77 In addition, the Council frequently includes language that the missions will create conditions for the provision of humanitarian assistance and access and security for humanitarian personnel.78 Mandates also occasionally include specific language requiring peacekeeping forces to secure IDP camps. This was first recognized in the original protection of civilians resolution in 1999, which “reaffirmed the primary responsibility of States to ensure [the protection of refugees and IDPs], in particular by maintaining the security and civilian character of refugee and internally displaced person camps.”79 Then, in 2003, the Council authorized an Interim Emergency Multinational Force to work with the UN Mission in Congo (MONUC) “to contribute to the stabilization of security conditions and the improvement of the humanitarian situation in Bunia . . . the internally displaced persons in the camps in Bunia.”80 Other missions which have been given similar mandates have included the UN Mission in the Central African Republic and Chad (MINURCAT),81 the UN Stabilization Mission in Haiti (MINUSTAH),82 and the UN Assistance Mission in Darfur (UNAMID).83 However, while the Council has clearly linked protection of IDPs with the Protection of Civilian Agenda in a range of mandates, the protection abilities of UN peacekeeping missions remain limited. There is, as a number of authors have noted, “a sharp disjuncture between the rhetorical protection extended by the UN Security Council . . . through its mandates and the extent of protection realized by civilians on the ground.”84

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This is due to several factors. First, mandates are limited by caveats based on geography and capabilities and with respect to the responsibilities of the host state.85 Second, at the mission level, protection of civilians mandates are frequently not understood, with the concept remaining “blurred, fuzzy, and its application is largely left to interpretation.”86 The key issue, as Holt and Berkman have argued, is that these peacekeeping forces continue to assume the consent of the host state, have “limited or unclear authority to act, even in situations of mass killing or genocide” and often lack the authority of mandate from “the Security Council to use all means necessary to protect civilians.”87 Third, these missions can replicate a territorial logic by carving out secure areas which leaves civilians outside these areas vulnerable to atrocities and helps to encourage displacement.88 Finally, these missions remain reliant on state consent. As Johnston argues, The consent-based nature of peacekeeping means that the UN must preserve a fruitful relationship with the host government. Yet too close a relationship can cause problems . . . the need for consent, taken too far, can leave the UN in the position of conceding a great deal in order to keep that consent.89 The United Nations has acknowledged the issues. A 2014 report by the Office of Internal Oversight Services noted that there was a “persistent pattern of peacekeeping operations not intervening with force when civilians are under attack,” finding that missions did not respond to over 80 percent of incidents where civilians were attacked at all, and that when they did respond, the missions almost never used force.90 The 2015 Report of the High-Level Independent Panel on Peace Operations similarly noted that while protection of civilians is a core obligation of the UN and that “significant progress has been made in promoting norms and frameworks,” on the ground “the results are mixed and the gap between what is asked for and what peace operations can deliver has widened in more difficult environments.”91 A final issue is a lack of training for Protection of Civilians–mandated peacekeeping troops around the specific elements of international law applicable to IDPs, including both the Guiding Principles and, in Africa, the Kampala Convention. This issue is significant enough that Weerasinghe and Ferris called on the Secretary-General to provide training to peacekeeping and other UN missions on international law including humanitarian, human rights, criminal, and refugee law as they relate to the protection of

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IDPs in armed conflict as well as training on the Kampala Convention (as applicable), and the Guiding Principles.92 Thus, while the Security Council has frequently mandated IDP protection within UN peacekeeping mandates, there remain difficulties in implementing protections on the ground.

The Responsibility to Protect and IDPs Finally, the Responsibility to Protect doctrine provides a further mechanism to ensure that IDPs are protected and assisted. As outlined in Chapter 2, forced displacement can directly qualify as a mass atrocity crime given two factors: the deliberate intent of the perpetrators, and the widespread or systematic nature of their acts. The Responsibility to Protect (R2P) doctrine establishes that each state as well as the international community as a whole has the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.93 There is obviously a close linkage between these four atrocity crimes and internal displacement. As Ferris has argued, not only does “displacement almost always [occur] as a result of the four crimes included in the R2P concept” but displacement can serve as an early warning sign that mass atrocities are occurring.94 While ethnic cleansing has the clearest linkage to forced displacement, it is the only mass atrocity crime adopted within the World Summit Outcome Declaration which does not have explicit grounding in current international treaty law. Instead, forced deportation or transfers can qualify as either as a war crime or crime against humanity, whereas forcible transfer of children can qualify as an act of genocide. Further, the R2P doctrine and IDPs share between them the significant shift in sovereignty introduced by Deng’s notion of “sovereignty as responsibility,” which argued that for governments to be legitimate they needed to provide a certain level of protection to their population and that, if unable to do so, they should call upon the international community to assist or the international community should step in.95 This formulation, Evans notes, became “a central conceptual underpinning of the responsibility to protect norm as it finally emerged.”96 And R2P and IDP situations can “often intersect and significantly overlap.”97 The Secretary-General’s 2009 Report on the R2P98 directly drew linkages between forced displacement and the doctrine. It noted that asylum could provide one route for protection from mass atrocity crimes, and also that the protection of refugees and internally displaced person was a direct goal of the R2P.99 However, the report did not engage more directly with IDPs, and failed to mention the Guiding Principles at all.100 More recently in the 2013 UN High

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Commissioner’s Dialogue on Protection Challenges, which focused on IDP protection, language of international responsibilities was clearly used, noting that “the international community has certain responsibilities. When the State is unable or unwilling to provide this protection, the international community will need to step in.”101 In his 2009 Report, Ban Ki-Moon also reformulated the R2P doctrine in line with three distinct pillars. The first pillar reflects “the enduring responsibility of the State to protect its populations, whether nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement.” The second pillar reflects the “commitment of the international community to assist States in meeting those obligations.” Finally, the third pillar articulates the “the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection.”102 Thus, the pillar strategy echoes the Guiding Principles in noting that governments have primary responsibility to protect their own population from mass atrocity crimes, whether IDPs or civilians, but also that the international community, too, bears responsibility for protection. Further, with this shift, the R2P doctrine means that a number of the existing measures that the UN Security Council has under both Chapter VI and Chapter VII of the UN Charter can be used to prevent or avert mass atrocities. Under Chapter VI, this includes the Council’s powers to investigate any dispute, while under Chapter VII the Council can use sanctions and other measures up to and including “such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”103 The R2P has proved useful in a number of IDP situations under the different pillars. While prior to the pillar strategy, the international response in Kenya in December 2007 which displaced 300,000 people and killed up to 1,500 people is today widely seen as an excellent example of Pillar Two at work.104 In that case, a troika of eminent persons led by Kofi Annan were able to convince the two political sides to conclude a power-sharing arrangement which ended the violence. Annan later noted he saw the crisis in the R2P prism with a Kenyan government unable to contain the situation or protect its people. I know that if the international community did not intervene, things would go hopelessly wrong . . . Kenya is a successful example of R2P at work.105 Another successful use of Pillar Two was in Côte d’Ivoire in March 2011. After President Laurent Gbagbo was unwilling to accept his electoral defeat and violence led to the creation of over 1 million IDPs, the UN

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Security Council recognized the victor, Alanssane Ouattara, as forming the legitimate government. The UN Security Council then reaffirmed Côte d’Ivoire’s responsibility to protect its own population and authorized the UN Operation in the Côte d’Ivoire, an 8,000-person mission which had been in the country since 2003, to use all necessary means to protect civilians including by preventing the “use of heavy weapons against the civilian population.”106 With French support, the mission defeated Gbagbo, who is now on trial at the International Criminal Court and charged with four counts of crimes against humanity, including rape, murder, and persecution, though not with forcible transfers.107 Referrals to the R2P doctrine have become almost routine in the Security Council, with no fewer than 64 resolutions having been passed which reference the doctrine up to August 2017.108 However, the likelihood of the Council to take direct action against a state without its consent remains rare, the case of Libya in 2011 notwithstanding. Instead, the R2P is likely to provide one additional mechanism to offer protection to IDPs through peacekeeping missions and with support to governments. It may also help improve assistance to IDPs. In the case of Syria, while the Council has not taken direct action in that conflict, it did for the first time ever allow UN-based humanitarian assistance to enter the country with the notification only, and not the consent, of the government: “Clearly underpinning this shift was a view that the Syrian authorities were not fulfilling their responsibilities toward their own population.”109

Conclusion In this chapter, I have explored three mechanisms through which the UN can provide protection and assistance to IDPs. With respect to humanitarian assistance, the UN’s approach has evolved through three different mechanisms, culminating in the 2005 cluster approach. The Inter-Agency Standing Committee has played a key role in policy norm development by both introducing a clear definition of IDP protection and shepherding these various reform processes. However, assistance remains problematic on two dimensions. First, assistance remains reliant on international organizations working with governments, and too often governments and civil society organizations are not brought into specific cluster discussions. Equally, efforts to help governments developed their own policies and laws are frequently separate from these efforts, even though legal protection is the core element of IDP protection. Second, international humanitarian efforts continue to face leadership and coordination efforts, driven in part due to the lack of a central organization with a dedicated mandate to assist and protect IDPs.

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Peacekeeping, too, continues to have issues. The development of the Protection of Civilians Agenda has meant that at the mandate level, peacekeeping missions are today far better prepared to protect IDPs, to assist them with return (and, in some cases, other durable solutions) and even, in some situations, to protect them in camps. But at the operational level, these missions are limited by fuzzy interpretations of their mandates, by a lack of capacity, by issues of consent, and by a lack of training on IDP-specific issues. The Responsibility to Protect doctrine has the opposite set of problems. While it can provide an important set of tools to respond to IDP situations that cross the line into mass atrocity crimes, the UN Security Council is unlikely to use these tools in situations where the concerned state is not prepared to consent. At the same time, it has provided a useful lens at the discursive level to reorient how the Council understands issues of state sovereignty and consent.

Notes 1 “The Well-Fed Dead in Bosnia,” New York Times, 15 July 1992. 2 CHR, “Analytical Report of the Secretary-General on Internally Displaced Persons,” E/CN.4/1992/23, 14 Feb. 1992, 2. 3 Ibid., 28. 4 CHR, “Comprehensive Study on the Human Rights Issues Related to Internally Displaced Persons,” E/CN.4/1993/35, 21 Jan. 1993, 25. 5 Ibid., 28–9. 6 Ibid., 29. 7 Ibid., 33. 8 CHR, “Internally Displaced Persons,” E/CN.4/RES/1993/95, 11 Mar. 1993; UNGA, “Internally Displaced Persons,” A/RES/48/135, 18 Feb. 1994, 2–3. 9 Cohen and Deng, Masses in Flight, 169–72. 10 Ibid., 170. 11 Cohen, “Nowhere to Run, No Place to Hide,” 40–3. 12 UNGA, A/RES/48/57, “Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations,” 14 Dec. 1993. 13 Weiss and Korn, Internal Displacement, 78–81. 14 CHR, “Comprehensive Study on the Human Rights Issues Related to Internally Displaced Persons,” E/CN.4/1993/35, 21 Jan. 1993, 64. 15 Ibid., 64; CHR, “Internally Displaced Persons, Report of the Representative of the Secretary-General,” E/CN.4/1994/44, 25 Jan. 1994, 4, 9. 16 Roberta Cohen and Jacques Cuénod, Improving Institutional Arrangements for the Internally Displaced (Washington, DC: Brookings Institution-Refugee Policy Group, 1995), 6. 17 IASC, “Protection of Internally Displaced Persons,” 4.; see also IASC, “Growing the Sheltering Tree: Protecting Rights through Humanitarian Action, Programmes and Practices Gathered from the Field,” 2002, 5. 18 Ibid., 2.

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19 United Nations, Handbook for the Protection of Internally Displaced Persons (New York: UN Global Protection Cluster Working Group, 2010), 7–10. 20 UNHCR, “High Commissioner’s Dialogue on Protection Challenges 2013: Theme-Protecting the Internally Displaced: Persisting Challenges and Fresh Thinking: Background Document,” 2. 21 UNSC, “4089th Meeting, S/PV.4089,” 13 Jan. 2000, 25. 22 OCHA Internal Displacement Unit, No Refuge, 22. 23 Weiss and Korn, Internal Displacement, 82. 24 Simon Bagshaw and Diane Paul, Protect or Neglect: Towards a More Effective United Nations Approach to the Protection of Internally Displaced Persons (New York: Brookings-SAIS Project on Internal Displacement; UN Office for the Coordination of Humanitarian Affairs, 2004), 3–5. 25 Elizabeth Stites and Victor Tanner, External Evaluation of OCHA’s Internal Displacement Unit: Final Report (New York: OCHA, 2004), 5. 26 Report by MSF-Holland, cited in Larry Minear, “Lessons Learned: The Darfur Experience,” in ALNAP Review of Humanitarian Action in 2004: Capacity Building, ed. Nina Behrman (London: Overseas Development Institute, 2005), 77. 27 Ibid. 28 Ibid., 81–2. 29 Forced Migration Review Editors, “Interview with Walter Kälin,” Forced Migration Review 23 (2005), www.fmreview.org/sites/fmr/files/textOnlyContent/FMR/23/01.htm. 30 United Nations, “Humanitarian Response Review,” Aug. 2005. 31 Ibid., 8–9. 32 Tim Morris, “UNHCR, IDPs and Clusters,” Forced Migration Review 25 (2006): 54–5. 33 Simon Russell and Vicky Tennant, “Humanitarian Reform: From Coordination to Clusters,” in The Oxford Handbook of Refugee and Forced Migration Studies, ed. Elena Fiddian-Qasmiyeh, et al. (Oxford: Oxford University Press, 2014). 34 OCHA, Consolidated Appeals Process (CAP): Appeal for Improving Humanitarian Response Capacity-Cluster 2006 (New York: OCHA, 2006). 35 The current clusters and cluster leads are shelter (IFRC/UNHCR); health (WHO); nutrition (UNICEF); water, sanitation, and hygiene (UNICEF); education (UNICEF and Save the Children); food security (FAO and WHO); early recovery (UNDP); camp coordination and camp management (UNHCR and IOM); emergency telecommunications (WFP); protection in conflict situations (UNHCR); and logistics (WFP). UNHCR, “Emergency Handbook: Cluster Approach (IASC),” https://emergency.unhcr.org/entry/41814, see also Ferris, The Politics of Protection, 120. 36 UNHCR, UNHCR’s Role in Support of an Enhanced Humanitarian Response to Situations of Internal Displacement: Update on UNHCR’s Leadership Role within the Cluster Approach and IDP Operational Workplans (Geneva: UNHCR, 2007). 37 Russell and Tennant, “Humanitarian Reform.” 38 OCHA, Consolidated Appeals Process; Ferris, The Politics of Protection, 122. 39 Abby Stoddard, Adele Harmer, Katherine Haver, Dirk Salomons, and Victoria Wheeler, “Cluster Approach Evaluation: Final,” Development 10121 (2007); Julia Steets, François Grünewald, Andrea Binder, Véronique De Geoffroy,

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43 44 45 46 47 48

49 50 51 52 53 54 55 56 57 58 59 60 61

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Domitille Kauffmann, Susanna Krüger, Claudia Meier, and Bonaventure Sokpoh, “Cluster Approach Evaluation 2 Synthesis Report,” in IASC Cluster Approach Evaluation 2nd Phase (Plaisians: Groupe URD and the Global Public Policy Institute, Apr. 2010). Steets et al., “Cluster Approach Evaluation,” 7. Elizabeth Ferris and Sara Ferro-Ribeiro, “Protecting People in Cities: The Disturbing Case of Haiti,” Disasters 36, no. s1 (2012): S53. Olushayo Olu, Abdulmumini Usman, Solomon Woldetsadik, Dick Chamla, and Oladapo Walker, “Lessons Learnt from Coordinating Emergency Health Response during Humanitarian Crises: A Case Study of Implementation of the Health Cluster in Northern Uganda,” Conflict and Health 9, no. 1 (2015): 5. HRW, “Always on the Run: The Vicious Cycle of Displacement in Eastern Congo,” 14 Sept. 2010, www.hrw.org/report/2010/09/14/always-run/viciouscycle-displacement-eastern-congo. Ferris and Ferro-Ribeiro, “Protecting People in Cities,” S44. Michael VanRooyen, “Effective Aid: Ensuring Accountability in Humanitarian Assistance,” Harvard International Review 35, no. 2 (2013): 13. Elizabeth Ferris, “Ten Years after Humanitarian Reform: How Have IDPs Fared?,” Brookings-LSE: Project on Internal Displacement (2014): 14–15. Ibid., 21. IASC, “What Does the IASC Humanitarian System-Wide Level 3 Emergency Response Mean in Practice?,” 4 June 2015, https://interagencystandingcom mittee.org/iasc-transformative-agenda/documents-public/iasc-transformativeagenda-what-does-iasc-humanitarian. IASC, “Concept Paper on ‘Empowered Leadership’,” Mar. 2014, https://inter agencystandingcommittee.org/system/files/legacy_files/Empowered%20Lead ership%20-%20revised%20March%202014.pdf, 1–4. IASC, “Cluster Coordination Reference Module,” July 2015, 10. Ibid., 24. Susanna Krueger, Andras Derzsi-Horvath, and Julia Steets, IASC Transformative Agenda: A Review of Reviews and Their Follow-Up (Berlin: Global Public Policy Institute, 2016), 18–19. Ibid., 28. OCHA, “Reduce and Address Displacement: Analytical Paper on WHS SelfReporting on Agenda for Humanity Transformation 3A,” 2017, 4. Phil Orchard, “The Emergence of Safe Areas and the Role of Normative Contingency,” Global Responsibility to Protect 10, no. 3 (2018): 309. UNHCR, Note on International Protection (Geneva: UNHCR, 1991), para 47. Bertrand G. Ramcharan, The International Conference on the Former Yugoslavia: Official Papers, vol. 1 (The Hague: Brill, 1997), 11. UNHCR, Note on International Protection (Geneva: UNHCR, 1993), para 37; Michael N. Barnett, “Humanitarianism with a Sovereign Face: UNHCR in the Global Undertow,” International Migration Review 35, no. 1 (2001): 263–4. Alex J. Bellamy, Paul D. Williams, and Stuart Griffin, Understanding Peacekeeping (Cambridge: Polity, 2010), 196–7. William G. O’Neill, “A New Challenge for Peacekeepers,” in Brookings-SAIS Project on Internal Displacement, Washington DC, April (Washington, DC: The Brookings Institution, 2004), 5. Astri Suhrke, “Dilemmas of Protection: The Log of the Kigali Battalion,” International Peacekeeping 5, no. 2 (1998): 12; see also Romeo Dallaire and Brent

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Beardsley, Shake Hands with the Devil: The Failure of Humanity in Rwanda (Toronto: Random House Canada, 2003); Linda Melvern, “UNOMUR and UNAMIR I” in The Oxford Handbook of United Nations Peacekeeping Operations, ed. Joachim A. Koops, Norrie MacQueen, Thierry Tardy, and Paul Williams (Oxford: Oxford University Press, 2015), 468–9. Alex J. Bellamy and Charles T. Hunt, “Twenty‐First Century UN Peace Operations: Protection, Force and the Changing Security Environment,” International Affairs 91, no. 6 (2015): 1279. Weiss, Military-Civilian Interactions. UNSC, S/RES/819, 16 Apr. 1992. UNSC, S/RES/824, 6 May 1993. William J. Durch and James A. Schear, “Faultlines-UN Operations in the Former Yugoslavia,” in UN Peacekeeping, American Politics, and the Uncivil Wars of the 1990s, ed. William J. Durch (New York: St. Martin’s Press, 1996), 231. Cited in UNHCR, The State of the World’s Refugees: Fifty Years of Humanitarian Action (Oxford: Oxford University Press, 2000), 224. Lakhdar Brahimi, “Report of the Panel on United Nations Peace Operations, S/ 2000/809,” 2000, x. UNSC, S/RES/1296, 19 Apr. 2000, 3. United Nations, United Nations Peacekeeping Operations: Principles and Guidelines [Capstone Doctrine] (New York: Department of Peacekeeping Operations, 2008), 24. OCHA, “Security Council Norms and Practice on the Protection of Civilians in Armed Conflict: Analysis of Normative Developments in Security Council Resolutions 2009–2013,” May 2014, www.refworld.org/cgi-bin/texis/vtx/ rwmain?page=search&docid=54913f4e4&skip=0&query=protection%20of% 20civilians%20peacekeeping, 5. Sanjula Weerasinghe and Elizabeth Ferris, Security Council, Internal Displacement and Protection: Recommendations for Strengthening Action through Resolutions (Washington, DC: Brookings Institution-London School of Economics Project on Internal Displacement, 2011), 32. UNSC, S/RES/2155, 27 May 2014, 4–5. See resolutions on Timor-Leste [S/RES/1867 (2009), 4] and the Democratic Republic of Congo [S/RES/1925 (2010), 3]. UNSC, S/RES/1974, 22 Mar. 2011, 6. UNSC, S/RES/2162, 25 June 2014, 1. UNSC, S/RES 2217, 28 Apr. 2015, 10–11. Weerasinghe and Ferris, Security Council, Internal Displacement and Protection, 33. UNSC, S/RES/1265, 17 Sept. 1999, 2. UNSC, S/RES/1484, 30 May 2002. UNSC, S/RES/1861, 14 Jan. 2009, 6. UNSC, S/RES/1927, 4 June 2010, 2. UNSC, S/RES/1935, 30 July 2010, 3. Anastasia Shesterinina and Brian L. Job, “Particularized Protection: UNSC Mandates and the Protection of Civilians in Armed Conflict,” International Peacekeeping 23, no. 2 (2016): 241; Victoria Metcalfe, “Protecting Civilians? The Interaction between International Military and Humanitarian Actors,” Humanitarian Policy Group Working Paper, Aug. 2012.

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85 Charles T. Hunt and Alex J. Bellamy, “Mainstreaming the Responsibility to Protect in Peace Operations,” Civil Wars 13, no. 1 (2011): 4. 86 Jon Harald Sande Lie and Benjamin de Carvalho, “Protecting Civilians and Protecting Ideas: Institutional Challenges to the Protection of Civilians,” NUPI Working Paper 760 (Oslo: Norwegian Institute of International Affairs, 2009), 1. 87 Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations (Washington, DC: The Henry L. Stimson Center, 2006), 6, Annex 1. 88 Alex J. Bellamy and Paul D. Williams, “Protecting Civilians in Uncivil Wars,” (Brisbane: Asia-Pacific Centre for the Responsibility to Protect Working Paper No. 1, 2009), 27. 89 Ian Johnstone, “Managing Consent in Contemporary Peacekeeping Operations,” International Peacekeeping 18, no. 2 (2011): 176–7. 90 Office of Internal Oversight Services, “Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping Operations,” A/68/787, 7 Mar. 2014, www.un.org/ga/search/view_doc.asp? symbol=A/68/787, 7. 91 UNGA, “Report of the High-Level Independent Panel on Peace Operations on Uniting Our Strengths for Peace: Politics, Partnership and People,” A/70/95-S/ 2015/446, 11. 92 Weerasinghe and Ferris, Security Council, Internal Displacement and Protection, 33. 93 UNGA, “Resolution 60/1: World Summit Outcome”; UNGA, Implementing the Responsibility to Protect: Report of the Secretary-General (New York: United Nations, 2009), 17. 94 Elizabeth Ferris, “International Responsibility, Protection and Displacement: Exploring the Connections between R2P, Refugees and Internally Displaced Persons,” Global Responsibility to Protect 8, no. 4 (2016): 394. 95 Deng, “Promoting Responsible Sovereignty in Africa,” 3. 96 Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington, DC: Brookings Institution Press, 2008), 37; see also Glanville, Sovereignty and the Responsibility to Protect, 174–6. 97 Elizabeth Ferris, Erin Mooney, and Chareen Stark, From Responsibility to Response: Assessing National Approaches to Internal Displacement (Washington, DC: Brookings Institution-LSE Project on Internal Displacement, 2011), 5. 98 UNGA, Implementing the Responsibility to Protect, 17. 99 Ibid., 29. On the links between mass atrocities and asylum, see Brian Barbour and Brian Gorlick, “Embracing the ‘Responsibility to Protect’: A Repertoire of Measures Including Asylum for Potential Victims,” International Journal of Refugee Law 20, no. 4 (2008). 100 Roberta Cohen, “Reconciling Responsibility to Protect with IDP Protection,” Global Responsibility to Protect 2, no. 1 (2010): 24. 101 UNHCR, “High Commissioner’s Dialogue on Protection Challenges 2013,” 3. 102 UNGA, Implementing the Responsibility to Protect, 8–9. 103 United Nations, “Charter,” Chapter VI, Art 34 and Chapter VII, Art 41 and 42. 104 Jennifer Welsh, “Norm Contestation and the Responsibility to Protect,” Global Responsibility to Protect 5 (2013): 389.

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105 Alex J. Bellamy, Global Politics and the Responsibility to Protect: From Words to Deeds (Milton Park: Routledge, 2011), 54; Elisabeth Lindenmayer and Josie Lianna Kaye, A Choice for Peace? The Story of Forty-One Days of Mediation in Kenya (New York: International Peace Institute, 2009). 106 UNSC, “Resolution 1975 (2011),” S/RES/1975, 30 Mar. 2011, 3; Alex J. Bellamy and Paul D. Williams, “The New Politics of Protection? Côte D’Ivoire, Libya and the Responsibility to Protect,” International Affairs 87, no. 4 (2011). 107 ICC, “The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Alleged Crimes,” www.icc-cpi.int/cdi/gbagbo-goude/pages/alleged-crimes.aspx. 108 Global Centre for the Responsibility to Protect, “R2P References in United Nations Security Council Resolutions and Presidential Statements,” www. globalr2p.org/resources/335. 109 Orchard, “Transnational Humanitarian Action and Regime Complexity,” 179.

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• • •

Implementing legal protections at the regional and domestic levels

Implementation success stories Progressing implementation Conclusions: when implementation works

The Guiding Principles provide a clear set of rights related to the protection and assistance of IDPs, as detailed in Chapter 2. Their introduction marked an important moment of recognition for IDPs—not just that they were an issue that required international attention, but also that they still were entitled to a range of protections under existing international humanitarian and human rights law and analogous refugee law. However, the Principles have been left with two issues. The first is that there are rights within the Principles that do not have clear legal precedents elsewhere. The second is that as soft law, while the Guiding Principles are able to provide an expansive, non-exhaustive definition of IDP status, covering both conflict and natural disaster–induced displacement and, under the arbitrary displacement clause, development-induced displacement, they are not binding on states or other actors. In this section of the book, I assess domestic laws and policies that have emerged in the wake of the Guiding Principles in order to gauge how effective their implementation has been. The introduction of the Guiding Principles and their widespread acceptance would appear to mark a significant turning point in the protection of the internally displaced. Perhaps the biggest sign of the normative commitment to the Guiding Principles, however, has been the number of states with IDP situations which have adopted their own domestic legislation or policies. Such adoptions represent an international priority. The UN General Assembly has encouraged “states to continue to develop and implement domestic legislation and policies with all stages of displacement.”1 Walter Kälin has noted that this was a deliberate “bottom up’ approach” designed to convince states with internal displacement to adopt the Principles “into domestic law and adapt their existing

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laws to the Principles . . . this approach has worked quite well so far.” And UNHCR notes that as part of its specific commitment to IDPs it supports “States’ efforts to adopt, update, or prepare national policies on IDPs.”3 But there can be a gulf between paper commitments marked by state rhetoric and their actual implementation. As noted in Chapter 1, implementation of new norms requires a number of steps, including seeing new discourses emerge around the norm and it being marked by legislative and bureaucratic changes. Unfortunately, here the markers are much more mixed. In 2002, Francis Deng argued that “while the Guiding Principles have been well received at the rhetorical level, their implementation remains problematic, and often rudimentary.”4 In 2008, Walter Kälin similarly noted that too often the Guiding Principles were “incorporated simply through a general reference to the Guiding Principles in a law or policy document, in some cases because of a lack of sufficient political will to address the plight of IDPs.”5 And in 2014, Chaloka Beyani noted that these domestic frameworks “vary in scope, the guarantees of protection and assistance to internally displaced persons, and the coverage of relevant issues.”6 A 2011 survey of 15 countries with IDP problems by the Brookings IDP project found that “nearly half . . . had adopted some preventive measures on paper. However, efforts to mitigate the adverse effects of displacement varied, and all fifteen fell short of actually preventing displacement in practice.”7 Given the widespread support for the Guiding Principles (and their normative properties) at the international and regional levels, how can we explain the varying content of these laws and policies, and how implementation may stall out at the domestic level? Given the soft law nature of the principles, governments which make a commitment at the international level to protect their own IDPs have done so only rhetorically. This necessarily needs to be followed by changes in domestic legislation and/or policy that embed the commitment into practice at the domestic level. Creating such legislation and policy is costly, both in financial terms (often requiring the creation of new bureaucratic actors at the national and local levels and the provision of direct assistance to IDPs) and symbolically in that it binds subsequent government action. Because most IDP situations occur within the context of intrastate conflict, this can be a substantial impediment. Consequently, there are two separate questions that need to be raised with respect to these laws and policies. The first is how closely they align with the international norms in the IDP protection regime. On the basis of those norms, we can identify three signposts which, if present in domestic laws or policies, would signal accord with international normative understandings. First, the Principles’ definition of who constitutes an IDP should be clearly reflected. Second, the fact that IDPs—as citizens—

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remain protected by international and domestic law should be noted, as should the principles as a restatement of their international legal rights. Third, there should be a tangible shift in domestic institutions. At a minimum, law or policy should identity the bureaucratic agencies responsible for assisting and protecting the internally displaced. Beyond this, the level of authority, the capacity, and whether a bureaucracy is newly formed to deal with the problem are also important factors. There is also a temporal factor—we should expect increased conformity with the Guiding Principles as time passes from their creation in 1998. Do the various legislation and policies countries have passed reflect these signposts? As demonstrated in the book’s annex table, this pattern is mixed. The table lists some 69 laws and policies passed by 40 states until the end of 2016 (minor policies and amendments are not included). Within the domestic laws and policies themselves, there is clear acceptance that IDPs require some form of international protection. Not only do a majority provide for the provision of international humanitarian assistance (46 laws and policies), but 41 laws and policies also note explicitly that IDPs are protected by international law, and 41 also note that they are also protected by some form of domestic law such as a state’s constitution. Most policies or laws also clearly indicate which government bureaucracies are responsible for IDP protection, and in many cases, new bureaucracies have been established to fulfill this role. By contrast, only 30 explicitly mention the Guiding Principles, and only 19 explicitly endorse its IDP definition. In fact, most of these laws and policies either do not provide a definition or introduce a more restrictive definition than that of the Principles.8 Beyond their content, there is the question of whether these policies and laws are actually implemented. Here, too, the record is problematic. Following the arguments made in Chapter 1, I propose three possible explanations for implementation stalling out.9 The first is that the government does commit to the norms embodied within the Guiding Principles but is unable to proceed forward in the implementation process. This may be due to a lack of state capacity whereby the government lacks the necessary financial, practical, and symbolic resources to ensure implementation: “In many cases, governments have been too weak to prevent displacement and mitigate its effects.”10 This can also reflect domestic interpretation and contestation processes over the norms embodied by the Principles. This may lead to more narrow understandings, such as with few states directly applying the Principles’ IDP definition either by seeking to narrow its geographic or temporal scope or by limiting the causes of displacement they consider as being appropriate for their own laws and policies. But such processes can also

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create domestic opposition within and outside of the government which cannot be overcome. Alternatively, the IDP policy may reflect the government having decided to make a strategic rhetorical commitment to the norms embodied within the Guiding Principles with no plan to follow-through on implementation. Two alternatives exist here. The first reflects the widespread international support for norms around IDP protection. Due to this, governments which have internally displaced populations may be driven by reputational concerns11 to rhetorically support these norms. As Schimmelfennig has argued, states may engage in such rhetorical action even when they may have no interest in engaging in actual compliance.12 Therefore, by introducing domestic policies or laws, these states seek to signal their support for the regime at the international level without consummate changes at the domestic level.13 States may also be responding to advocacy efforts from IOs and NGOs. This may reflect a process of persuasion which shifts the government’s or key decision makers’ views on the issue, leading to a normative commitment. Alternatively, the shift in behavior may reflect these organizations’ influence on governments through conditionality policies which provide international actors direct influence over the internal affairs of developing states on a range of issues.14 For example, UNHCR advocates with governments in favor of the “implementation of a national policy and plans of action that would enhance the protection of IDPs” and also provides government support to do so.15 This institutional involvement may cause governments to create policies or laws where they otherwise may not have taken action; absent further pressure, however, there will be little followthrough implementation. In either case, the decision to take rhetorical action by introducing either national legislation or policy around IDP protection opens up governments to the possibility of rhetorical entrapment. While they may lack incentives to undertake concrete actions, a government’s public stance may open them up to international shaming efforts based on the legitimacy and widespread acceptance of the norms around IDP protection. Such efforts may lead the government to subsequently take actions in order to ameliorate or reduce pressure.16 How can we determine which of these explanations are at play in explaining a government’s failure to implement? If an implementation effort fails due to opposition or capacity, there should be evidence that the government did make an effort to move forward with the policy. Thus, in these cases, we are more likely to see examples of stalled implementation—early efforts to move, then protracted non-action. It should also be possible to identify the constraints that the government was under which led to non-implementation. When the government is engaging only in rhetorical action, we may witness

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the reverse: initially little implementation effort at all. However, international shaming efforts based on the legitimacy of the norms within the Guiding Principles may lead to rhetorical entrapment, following which the government will respond with (at least some) implementation efforts. The next three chapters examine the legislation and policies adopted by each of these 40 states, focusing on how successful their implementation process has been. I gauge implementation on the following five-point scale: •

•

•

•

•

Strong implementation reflects not only that the state has clearly committed to implementing legislation or policies with explicit reference to the Guiding Principles and other applicable international and humanitarian standards, but also that there is clear evidence of ongoing support for the law or policy, including identified organizational support and significant financial contributions by the government. Progressing implementation occurs where the state has clearly committed to implementing legislation or policies, but where these either are not fully in accord with the Guiding Principles or reflect either a limited IDP definition or limited provision of durable solutions (such as a focus on return rather than other forms). There is also clear evidence of organizational support, but capacity may be limited. Limited implementation occurs where the state has made clear commitments to implementing legislation or policies, but that actual practice has been limited with no clear IDP definition, limited support for a range of durable solutions, or lack of ongoing support for IDPs. Problematic implementation occurs where the state has introduced legislation or policies, but where implementation has generally not occurred either due to a lack of capacity or political will, or where the law or policy is being widely ignored by state officials. No implementation reflects cases where a policy or law may exist but is only in a draft stage or the government has undertaken no action to implement it. The draft stage is included here because in several cases processes have stalled out at this stage.

Given the number of states, I do not exhaustively review each case. Rather, I briefly examine the content of the individual laws and policies, and then see how effectively they have implemented in practice. This is based on my own reading of the policies, and implementation effectiveness is based on reports from the Internal Displacement Monitoring Center and other organizations as indicated. I begin with the success stories—states which have had either strong or progressing implementation of their policies. Chapter 7 focuses on the bulk of the cases which fall within the area of

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limited implementation, while Chapter 8 then examines the cases where implementation has either been problematic or has not occurred at all.

Implementation success stories These “success stories” are cases where domestic laws or policy have either been implemented strongly, or where their implementation is progressing, according to the previous rubric. It is important to note that in many of these cases, implementation efforts do vary over time. Factors outside the implementation process—including the start or end of conflict and increased or decreased international support—can have significant effects. Shifts within governments, too, can have significant effects on implementation. In a number of cases examined in this chapter—including Azerbaijan, Croatia, Georgia, and Liberia—initial implementation efforts were flawed, but a renewed commitment by the governments concerned reinvigorated the processes. Bosnia and Herzegovina The Bosnian War between 1992 and 1995 created over 1.2 million IDPs. Because of this, the Dayton Peace Agreement (1995) has a significant section on refugee and IDP return. As Mooney notes, Annex VII of the agreement “placed particular emphasis on the right of all refugees and displaced persons ‘freely to return to their homes of origin.’”17 It also gave UNHCR the initial lead role in developing a repatriation plan to ensure these returns.18 However, the Bosnia and Herzegovina (BiH) government did not introduce any associate legislation. As Philpott notes, “Without an effective mechanism by which to repossess their occupied property, the right to return . . . was an empty promise for most IDPs and refugees.”19 This changed in 1999, when the BiH government introduced a Law on Refugees from BiH and Displaced Persons in BiH with UNHCR assistance.20 The law does not use the Guiding Principles’ definition, instead establishing a limited definition of a “displaced person” as someone who is a citizen who had been expelled or left their habitual residence after 30 April 1991 for similar reasons as the Refugee Convention nexus clause. The law also granted the Ministry for Human Rights and Refugees a policy-making, coordinating, and supervisory role over return and reintegration of displaced persons, and acknowledged that IDPs have rights against discrimination. In the decade after the war ended, over 1 million IDPs were able to return to their pre-war residences. This process was not smooth. Local authorities frequently “maintained legal positions that impeded implementation” but the UN’s Office of the High Representative had the ability to issue

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interpretation letters and to remove overtly obstructive officials. Even so, return efforts gradually stalled out. Philpott suggested in 2005 that implementation of the restitution laws “remained at just below 93 per cent since December 2003 and, for structural reasons, is unlikely ever to reach 100 per cent.”22 Mooney noted in 2008 that there remained some 125,000 officially registered internally displaced persons but also that many who may have returned initially but “have not remained in their place of return in the long-term.”23 Six years later, in 2014, IDMC estimated that 100,400 IDPs remained and, more worryingly, that in 2013, only 151 returns had been recorded.24 In 2010, the Ministry noted that there remained a need to ensure unhindered access to the rights established within Annex VII and to strengthen implementation efforts. This led to the introduction of the Revised Strategy of Bosnia and Herzegovina for the implementation of Annex VII of the Dayton Peace Agreement.25 Under the strategy, the Ministry committed to ensuring the necessary funds to ensure full implementation and monitoring of the return program, especially for the extremely vulnerable.26 In 2013, a Joint Declaration on Resolving Protracted Displacement was also signed between the Ministry, the EU, the UN Resident Coordinator, and UNHCR, which committed international support to the sustainable settlement of IDPs. The strategy remains unfinished. The government has pointed to significant expenditures of over 1 billion KM (US$ 580 million) but argues that it still needs to secure additional funds.27 Thus it is estimated that some 84,500 IDPs and 47,000 minority returnees “still need support to obtain a sustainable solution.” In addition, concerns remain that the fragmented nature of the institutional setup of BiH “prolongs decision-making and hinders coordination” and that strong leadership from the government is necessary.28 Return difficulties reflect a combination of two factors. The first was difficulties around property rights. Many dwellings were occupied after the owners fled, yet the courts have, in a number of cases, required returnees to reimburse occupants for any expenses and investments they undertook. At the same time, so much of the housing stock had been destroyed by the war that this also impeded return—by 2008, only half of destroyed or damaged units (around 260,000 houses) had been rebuilt due to a lack of funding for reconstruction.29 The second is that minority returnees remain victims of hate crimes and antagonistic rhetoric, with the result that many returned IDPs have fled again while “others remained in areas where they were part of the majority ethnic group because they feared discrimination and reprisals upon return.”30 Returnees still have difficulties accessing their full rights, including access to pensions and health care, for which the administration is split

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between the Federation of Bosnia and Herzegovina and Republika Srpksa, and a number of schools remain ethnically segregated.31 The current High Representative for Bosnia and Herzegovina, Valentin Inzko, noted in 2015 that complete implementation of Annex VII is essential and that the authorities need to ensure the displaced and minority returnees full access to their rights.32 While the vast majority of IDPs have successfully returned to their homes and the government has made strong efforts to return the rest, problems persist because of the structure of the government itself, ongoing property disputes, and the post-conflict environment. Colombia Colombia’s long-running insurgency began in 1964, when two Communistinspired groups—the Ejército de Liberación Nacional (ELN) and the Fuerzas Armadas Revolucionarias de Colombia (FARC)—began an armed conflict with the Colombian state. This insurgency is one cause of displacement in Colombia, but so too are military campaigns against the groups, right wing paramilitary groups, and drug cartels. All groups have engaged in widespread human rights violations over the course of the conflict.33 It has created massive displacement, with most IDPs fleeing from rural areas into the cities. IDMC estimates that cumulatively between 1985 and 2014 this mixture of drivers had produced up to 6 million IDPs while some 1.8 million hectares of land have been abandoned.34 While the government did not even recognize it had internally displaced people until the early 1990s,35 since then Colombia has been hailed for having one of the most encompassing legal frameworks for IDP protection. The government has also taken on considerable responsibility for its own IDP population, spending US$1 billion per year.36 Colombia’s efforts began with the creation of the Registro Unico de la Población Desplazada, an agency tasked with registering IDPs for assistance, and the government then passed its first law with respect to IDPs, Law 387 on Internal Displacement, in 1997. This followed a mission by Deng to the country in 1994, who had noted that “despite undeniable progress in the area of human rights protection, practice still lags far behind,” including that the country lacked any integral policy within the government on the issue of displacement, and UNHCR provided the government with legal assistance in drafting the law.37 The law’s definition of IDPs is close, though not identical, to that of the Guiding Principles, noting that it includes any person who has been forced to migrate within the national territory, abandoning his place of residence or customary economic activities, because

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his life, physical integrity, personal freedom or safety have been violated or are directly threatened as a result of any of the following situations: internal armed conflict, civil tension and disturbances, general violence, massive Human Rights violations, infringement of International Humanitarian Law, or other circumstances arising from the foregoing situations that drastically disturb or could drastically disturb the public order.38 The law establishes that the displaced have the right to receive assistance, to continue to enjoy internationally recognized civil rights, to not be discriminated against, and to consent to definitive solutions to their situation.39 The law also created a new agency, the Sistema Nacional de Atención Integral a la Población Desplazada, to oversee action at the national and local levels.40 The government has been held accountable for failures to implement the Law by the Colombian Constitutional Court. That Court has gone so far as to rule that the Guiding Principles are “supranational legislation.”41 This has given the court power to criticize the government for failing to enforce existing legislation and for “often ineffective implementation at the departmental and municipal levels’ of policy.” A 2004 judgment found that the state of IDP assistance and protection in Colombia was “unconstitutional and summoned the State to address promptly the structural causes” while a follow-up decision in 2006 required the government to produce more comprehensive indicators on its implementation of the earlier law.42 In response to the 2004 ruling, the government created a new Presidential Agency for Social Action and International Cooperation to supervise social programs. Ferris notes that this system was “a comprehensive and complex effort to coordinate the efforts of many governmental agencies, operating on different levels.”43 In addition, the Justice and Peace Law of 2005 established mechanisms for the restitution of property and land that had been illegally obtained by paramilitary leaders and which also provided compensation for victims, and was further supported by a 2008 Presidential Decree. However, the IDMC noted in 2014 that “only a small number have received financial reparations under its provisions.”44 In 2011, a new Victims Law (Law 1148) specifically defined IDPs as victims of conflict. The Law’s goal is to improve government assistance and reparations to all victims through more efficient administrative processes including by disbanding the National System created by Law 387 and the Presidential Agency and replacing it with a new National System of Comprehensive Attention and Reparation for Victims.45 While the creation of the new system has meant that many IDPs have been registered for the first time, there were reports that “IDPs experienced

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delays in receiving responses to their displacement claims because of a large backlog of claims build up during serval months. International organizations and NGOs remained concerned about the slow and insufficient institutional response to displacement.”46 While the government has committed to these changes, Gottwald notes that civil authorities are absent or only marginally present in various parts of the country, notably those areas most affected by forced displacement. Equally, their resources and capacities are often inadequate to prevent, respond to and resolve displacement, particularly in lowincome municipalities.47 The government signed a peace agreement with FARC in October 2016, which has led to about 459,000 IDP returns and 541,000 IDPs finding provisional solutions.48 However, UNHCR has reported that increased violence since the agreement by new armed groups has led to further displacement.49 Thus, while the Colombian government has made strong legal commitments to the rights of IDPs—commitments for which it has been accountable to the Colombian Constitutional Court—ongoing violence has limited the capacity of the government to implement its commitments in some areas. Sierra Leone The government passed a resettlement strategy in 2001,50 following two successful agreements which had reinvigorated the 1999 Lome Peace Accord and which would lead to an end of fighting between the government and the Revolutionary United Front in January 2002.51 The strategy aimed to contribute to the transition from conflict to peace by establishing a plan for resettlement and reintegration of internally displaced persons, refugees, and ex-combatants. Responsibility for its implementation lay with a Resettlement Steering Committee, which was composed of government and international officials as well as a representative for the displaced. It established that a separate national-level committee would determine what criteria were needed to assess if areas of return were safe. The Strategy also noted that registration of IDPs would be conducted in accordance with the Guiding Principles. The next year, a Recovery Strategy for Newly Accessible Areas52 established a National Recovery Committee to guide returns and the overall recovery program. The combination of the strategy and the presence of UN peacekeepers encouraged widespread returns, and the National IDP Resettlement program was officially completed in December 2002. In a 2004 report,

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IDMC noted that all camps had closed by early 2003 and that over 225,000 IDPs had returned within the strategy’s framework, while an additional 245,000 IDPs had returned home spontaneously without assistance.53 The government has since signed and ratified the Kampala Convention.54 A 2012 retrospective evaluation by UNHCR found that there was “little evidence of strong distinctions between former refugees and IDPs.”55 Thus, in Sierra Leone, a strong resettlement strategy in conjunction with the end of the conflict led to significant returns or other durable solutions for the IDP population. Tajikistan In Tajikistan, a civil war fought between the government of President Nabiyev and the United Tajik Opposition began in 1992 and saw between 20,000 and 50,000 people killed and created over 800,000 IDPs and refugees, with 70 percent of IDPs being able to return to their villages by March 1993.56 In 1992, the government created a Department of Refugee Affairs as part of the Ministry of Labor as well as legislation around refugees and, in 1994, on forced migrants. This 1994 law defined forced migrants as either a citizen or permanent resident of Tajikistan who had been forced to leave their permanent residence due to violence or a genuine danger of being persecuted for reasons of race, nationality, place of origin, social group, or because of mass disturbance. Individuals needed to apply for forced migrant status from the Department of Refugee Affairs and could then receive temporary residence free of charge as well as a monetary allowance. This status was granted for three years.57 The Department would also take measures on returning to forced migrants the property left by them in places of their previous residence. If it is not possible to return it, then compensation shall be paid in manner and amount as determined by the Council of Ministers of the Republic of Tajikistan.58 The government also created a relief fund. Finally, the law established that forced migrants could not be returned against their will to their place of previous permanent residence.59 Deng, following a mission in 1996, noted that the government had initially considered “the return of the displaced a nationality priority, it facilitated this task through a number of means within its capacity.” This had significantly assisted UNHCR’s efforts as lead agency in the country on the part of the international community. However, Deng suggested that as the number of humanitarian organizations in the country had increased,

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“coordination and cooperation between the humanitarian community and the Government has weakened.”60 Human Rights Watch also suggested that year that there had been significantly difficulties in implementing these laws due to a lack of resources and an unwillingness to proceed by local authorities, many of whom had been armed leaders during the civil war. Human Rights Watch interviewed Teymour Tabarov, the then director of the Department of Refugee Affairs, who admitted that the government was having difficulty in taking back occupied housing, noting “it is very difficult to take back land from one who is already cultivating it.”61 Over time, however, Leckie and Huggins note that the government successfully enforced property restitution policies through the judiciary with UNHCR’s support.62 By 2001, most of the IDPs had been able to return home.63 This case predates the Guiding Principles, and the Tajikistan Law on Forced Migrants effectively applied to both refugees and IDPs. While the government response appears to have had some implementation issues, over time and with the support of the international community all IDPs appear to have either returned home or received other durable solutions.

Progressing implementation Azerbaijan The 1992 to 1994 Nagorno-Karabakh War saw 600,000 Azerbaijanis expelled from territories occupied by the Armenian forces. The Azerbaijani government initially took no long-term action as it awaited a political settlement to allow for the return of the IDPs, with most of the displaced populations remaining in camps and other temporary shelters.64 Azerbaijan passed a 1999 Law on the Status of Refugees and Forcibly Displaced Persons;65 however, it defined an IDP narrowly as someone forced to leave their permanent residence “in connection with military aggression or natural or manmade disaster” and applied only from 1988 onward. The State Committee for Refugees and IDPs, first established in 1993, was positioned as the main body to deal with IDP issues, including granting status and registration. IDP status ceased only upon return to their place of origin or being provided with equivalent living space in their place of origin.66 This reflects a reluctance on the part of the government to promote local integration as a longterm solution.67 Given the frozen nature of the conflict, this meant most of the IDPs created from the war remain displaced over 20 years after, with the government estimating that the country had 609,029 IDPs as of 2013.68 Beginning in 2001, the government began to more actively address the needs of IDPs, including through a number of presidential decrees, resettlement commitments, and allocating the proceeds from the State Oil Fund to

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providing IDPs with assistance and a commitment to close all IDP tent camps.69 A 2004 decree also prohibited the eviction of IDPs from their current place of residence until their return to their place of origin.70 These efforts were generally successful, with a 2009 UNHCR needs assessment concluding that the government had improved living conditions and employment opportunities for IDPs, including eliminating tent camps in 2007.71 Similarly, a 2010 IDMC report noted that the government had assumed “full responsibility for the internally displaced population” and was developing an extensive legal framework. The government also devoted significant financial resources to IDPs of up to US$5.5 billion over the past 20 years, including $1.9 billion from the state oil fund and US$1.1 billion from international financial institutions and humanitarian organizations.72 The legal situation lags these efforts, however, with Beyani noting in 2015 that “comprehensive legislation addressing all human rights of IDPs and durable solutions has yet to be adopted or consolidated,” that the 1999 legislation still needed to brought into conformity with the Guiding Principles, and that specific IDP groups such as those displaced by disasters remained excluded.73 In this case, a lack of initial response following the war was replaced by a concerted government effort to provide for its IDP population. However, the legal framework remains out of date, not reflecting the Guiding Principles, and deliberately impedes the internally displaced population from finding durable solutions to their plight given the frozen nature of the conflict. Croatia One of the earliest laws on internal displacement was passed by Croatia in 1993,74 responding to the displacement created as a result of the Croatian War of Independence fought between 1991 and 1995 between Croatia and members of the ethnic Serb minority with the support of the Yugoslavian National Army controlled by Serbia. The war displaced 220,000 Croats and 90,000 ethnic Serbs. Following brokering of a peace deal, the Basic Agreement, by the UN and United States in November 1995, the United Nations Transitional Authority supervised Serb-held areas of Croatia, with the last sections being returned to Croatian control in 1998. A UN police monitoring mission remained until the next year and was replaced by police monitors from the Organization for Security and Cooperation in Europe.75 To respond to the IDP and refugee movements, the Croatian government created an Office for Displaced Persons and Refugees in 1991, which was tasked with providing accommodation and assistance to the displaced.76 A

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1993 law defined displaced persons and refugees as persons who were from the “war endangered zone” and who had fled their domiciles due to their life being in immediate jeopardy due to aggression or other armed action, with displaced persons being those who remained within the Republic of Croatia. The Office for Displaced Persons and Refugees was one of several government actors (including the Ministry of Internal Affairs, the military, and the Croatian Red Cross) which could determine this status. The Law established that displaced persons could exercise their rights as citizens including obtaining public documents and that they had guaranteed rights to accommodation, food, financial assistance, and other basic rights. In 1996, the Croatian government also introduced a Decree on returnee rights which entitled those in temporary possession of abandoned buildings, and those who have leased apartments in some areas (referred to as Liberated Territory) to financial assistance, education, and health care.77 The Basic Agreement included language around the right of return for displaced persons or to remain where they were, and respect for their human rights. An Operational Agreement on Return was then negotiated to facilitate returns in 1997. By 2002, 202,000 out of the 220,000 Croats displaced by the war had been able to return. However, these agreements did little to ensure the return of internally displaced Serbs. A total of between 300,000 and 350,000 Serbs left their homes during the war, with 80,000 remaining in Croatia as IDPs while the rest left the country. By 2001, IDMC estimated that only 22,500 internally displaced Serbs had returned. This was due to slow implementation of property repossession procedures. At the central level, issues included difficulties in recovering lost tenancy rights and discriminatory practices in government reconstruction assistance.78 At the local level, Human Rights Watch reported in 2003 that local courts and administrative bodies frequently failed to evict Croat occupants of houses which belonged to returning Serbs and that Serbs also face discrimination.79 The US State Department noted that government “authorities took an inconsistent and non-uniform approach to minority IDPs, hampering their return.”80 In 2000, the Croatian government began to remove these discriminatory practices from the policies, reflecting the start of its accession to the European Union. In December 2001, it introduced an “Action Plan for Implementation of Repossession of Property by the End of 2002.” Even so, Human Rights Watch noted that “a web of return-related laws and regulations, often mutually exclusive or overlapping, has for years created a legal conundrum utterly incomprehensible to prospective returnees.”81 The last estimates of IDPs in Croatia, from June 2009, pointed to some 2,402 IDPs who remained, of whom 1,638 were ethnic Serbs. However, the

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fall in numbers reflects that IDPs who received government reconstruction or housing assistance are considered to be fully integrated six months after receiving the help, rather than having received a durable solution.82 Following the end of its discriminatory practices, therefore, the government has been able to ensure that almost all IDPs have either returned or at least received some other form of housing assistance. However, bureaucratic hurdles remain an issue for many IDPs. Georgia Georgia first experienced internal displacement following fighting in the South Ossetia and Abkhazia regions which sought secession from Georgia. Ceasefire agreements were signed in 1994. However, efforts to ensure durable solutions for those displaced by those conflicts were slow to develop—by 2011, IDMC estimated that 256,000 people were still internally displaced.83 The government took its first steps toward assisting IDPs with the creation of a Law on Forcibly Displaced Persons-Persecuted Persons in 1996, predating the Guiding Principles. The Law was limited in scope and required that a person come from “an occupied area” in order to qualify. Following a visit in 2000, Deng encouraged the government to design national policies and legislation in line with the Guiding Principles, and the Minister for Foreign Affairs suggested at that time that the Guiding Principles “should acquire, step by step, an obligatory character.”84 However, no concrete changes occurred. With the 2003 Rose Revolution, the government shifted its priorities from IDP return to allowing IDPs to make “a meaningful choice of whether to return to their pre-war places of residence or to permanently integrate locally or elsewhere in Georgia.”85 This saw the Law amended in 2006.86 IDP status, however, remained limited to those forced to leave their permanent place of residence due to threats to life, health, or freedom “caused by the occupation of the territory by a foreign state, aggression, armed conflict, mass violence and/or massive human rights violations and/or he/she cannot return to his/her permanent place of residence due to the above-mentioned reasons.” The situation of IDPs also remained precarious. During a 2005 visit, Kälin noted that he was shocked by the miserable living conditions of many IDPs . . . Many have no income of their own and are dependent on the Government’s financial allowance of around US$ 6 per month, which is insufficient to afford the minimum monthly food basket or other basic necessities.87

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In 2007, the government introduced a new State Strategy on IDPs following significant consultation with UN agencies and international NGOs and national civil society actors. The Strategy was designed to provide a range of rights for IDPs including housing, employment, legal status, health, and education, and also noted that integration was not a bar for future return to their original residence.88 In 2008, Georgia and Russia fought a brief war over South Ossetia, which led to the displacement of around 17,000 people. The RussoGeorgian War, IDMC suggests, drove the government to actually implement the State Strategy through a new action plan, in part because the war demonstrated that IDP return to the autonomous regions had become a distant prospect.89 By 2012, IDMC noted that the government had made good progress in implementing the strategy. However, despite this, the Ministry of Internally Displaced Persons from the Occupied Territories, Refugees, and Accommodation was “left to implement the plans with increasingly limited resources and without much engagement from other ministries or state agencies” and that the government further narrowed the 1996 law to include only those displaced from “occupied territories.”90 The Council of Europe similarly noted that while general feedback from international actors suggested “the government’s approach is constructive and shows commitment,” they raised concerns that the Strategy was focusing on humanitarian assistance and did “little to open the doors for reintegration.”91 In 2013, the Georgian Constitutional Court ruled that, in line with the Guiding Principles on Internal Displacement, all Georgians who were displaced by armed conflict, not just those in occupied territories, should qualify as IDPs.92 This led to the government introducing a new IDP law in 2014 with UNHCR and the Norwegian Refugee Council’s guidance,93 which abrogated the 1996 and amended laws. While this law did not adopt the Guiding Principles definition directly, it did define IDPs as a citizen or stateless person residing in Georgia who was forced to leave their place of permanent residency as “as a result of occupation, aggression of a foreign state, armed conflict, mass violence and/or mass violation of human rights, and/or unable to return to permanent place of residency due to the above listed reasons.” The law improves the rights of IDPs against discrimination, protection of family unity, and for adequate housing, and increases the monthly allowance to impoverished IDPs.94 In a 2016 mission, Beyani welcomed the steps to improve the legal conditions for IDPs, though he noted that the definition remained exclusive to some forms of forced displacement only.95 Similarly, the Public Defender of Georgia has noted that the law “does not include persons who were

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forced to flee their homes due to natural or man-made disasters” and thus fails to comply with the Guiding Principles.96 Assistance to IDPs also remains an issue. The government has undertaken new comprehensive registration exercises and determined that there were 272,049 IDPs in the country as of September 2016.97 Beyani also noted that the government was making a continuing commitment to improve IDP living conditions, but that more needed to be done to assist IDPs “living in deplorable conditions” in collective centers or private accommodation.98 Thus, the government of Georgia has made clear legal commitments to its IDP population, even if short of the standards of the Guiding Principles, but its efforts to provide them with durable solutions remain frustrated by a lack of resources. Kenya Kenya has had a number of instances of internal displacement. The most wellknown have been linked directly to ethnic clashes around elections, most notably in 2007–2008, but also earlier including following elections in 1992 and 1997. In addition, clan and ethnic skirmishes have occurred perennially in some parts of Kenya.99 As IDMC notes, “Kenya represents a complicated case, with multiple causes of violence-induced displacement . . . and limited sources of information.” They estimate that Kenya had 138,000 IDPs in 2016.100 Kenya moved to improve its response to IDPs issues after the postelection violence in 2007–2008, when “the inadequate and uncoordinated nature of responses highlighted the need for a framework to act as a platform for collaboration and coordination.” Following its signature of the Great Lakes Protocol, the Kenyan government moved to adopt IDP legislation in 2012.101 Kenya’s 2012 Act102 establishes that, while subject to the Kenyan Constitution, the provisions of the Great Lakes Protocol and of the Guiding Principles “shall apply to all internally displaced persons in Kenya.”103 It defines IDPs in line with the Guiding Principles. The government accepts a duty to both prevent internal displacement, and to “protect every human being against arbitrary displacement.”104 The Act establishes a new National Consultative Coordination Committee (NCCC), which includes members from a range of ministries alongside non-state actor/ donor and IDP representatives. The NCCC is tasked with ensuring the registration of all IDPs and creating a national database.105 Finally, the Act establishes that the government will provide IDPs with durable and sustainable solutions and allow them to make “an informed and voluntary decision on whether to return, locally integrate, or resettle elsewhere in the country.”106

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In addition, a draft IDP policy was created in 2010 with the assistance of the International Protection Working Group on Internal Displacement. The policy provides a comprehensive approach to responding to internal displacement, including outlining institutional frameworks and identifying the roles and responsibilities for both states and non-state parties. However, while the draft went through a series of revisions and was endorsed by the cabinet in October 2012, there has been no further progress toward its adoption beyond the establishment of a national consultative coordination committee in February 2015.107 The lack of a policy has hampered efforts to assist IDPs. While a restorative fund was created by the president in March 2015, no victims have yet received compensation in part because there is no clear means to determine the status of IDPs.108 Thus, while Kenya has created strong legislation around IDP protection, its failure to pass an IDP policy has impeded implementation efforts. Liberia Liberia faced two successive civil wars, one which began in 1989 against the National Patriotic Front of Liberia led by Charles Taylor, who overthrew Samuel Doe’s government in 1997; the second which saw the Liberians United for Reconciliation and Democracy and then the Movement for Democracy in Liberia challenge Taylor’s rule from 1999 until 2003, when the Accra Comprehensive Peace Agreement was signed and Taylor resigned. The successive armed conflicts led to significant internal displacement, with an estimated 500,000 to 600,000 IDPs in the country when the Peace Agreement was signed.109 The Liberian government in 2002 passed a Declaration in which the government committed “to respect the rights of all Liberians in IDP camps to return to their places of origin or habitual residence with the full protection of the Law.”110 It tasked the Liberia Refugee Repatriation and Resettlement Commission, which had been created in 1993, to manage camps in collaboration with the international community and to provide a return process for IDPs. Then, in 2004, the government adopted the Guiding Principles.111 This led to the government passing a new “National Community Resettlement and Reintegration Strategy” with the objective of supporting the resettlement and reintegration of IDPs.112 Policy implementation was coordinated by a new Results Focused Transitional Framework Working Committee for Cluster three, chaired by the Ministry for Internal Affairs and involving other ministries, UN agencies, donors and local and international NGOs, and returns were to be undertaken in line with the Guiding Principles.113 The government also worked closely with the international community in an IDP Consultative Forum that was created by the UN Humanitarian

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Coordinator in 2005, which, while criticized for a perceived lack of inclusiveness, was noted in a 2007 UNHCR evaluation as appearing “to have evolved into a highly effective decision-taking forum, with the engagement of donors playing a key part in its effectiveness.”114 Following national elections in 2005 and the installation of President Ellen Johnson-Sirleaf’s government in early 2006, the vast majority of IDPs returned to their homes. However, the government made a decision to provide return assistance only to IDPs who had been registered by WFP in the camps for food distribution purposes. This left a residual group of some 23,000 as of 2007 in the camps who were excluded from the assistance.115 By the end of 2010, the Liberian government and the international community considered the IDP situation to have ended; however, the state of this remaining population remains unclear.116 Further, as the policy focused primarily on returns from the camps, the country “lacks a national legal or policy framework clearly designating an agency in charge of coordinating relief activities.”117 The government signed the Kampala Convention in 2009 and ratified it in 2014.118 Overall, Liberia’s policies have been in line with the Guiding Principles and successfully returned the vast majority of its internally displaced population. Serbia Serbian military led attacks in Kosovo between 1998 and 1999 and the threemonth NATO air campaign against the Serbian government in 1999 had created widespread displacement, with several hundred thousand IDPs leaving Kosovo for Serbia. In 1999, the government directed the Serbian Commissariat for Refugees, which had been created in 1992, to begin taking responsibility for IDPs by administering collective centers and IDP registration. The government did not define IDP status until 2002, when it adopted a National Strategy for Resolving the Problems of Refugee and Internally Displaced Persons. The Strategy initially focused on refugees and its implementation program was applicable only to refugees.119 However, a 2004 review by the UN IDP Interagency Working Group noted that the National Strategy was “generally regarded as strong and through, having benefited from consultations with civil society, beneficiary communities and various government agencies.” The review did go on to note that “the most pronounced criticism is that these strategies are not being adequately coordinated with one another nor implemented into law.”120 There was also a move to introduce local action plans in municipalities. While 114 out of 150 municipalities had adopted such plans by the end of 2011, their implementation has been slow, as municipalities lack adequate funding and resources and neglect of IDPs in informal settlements. A revised

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Strategy was passed in 2011, though both its implementation and funding have also been delayed.121 Beyani, following a 2013 mission, noted that while Serbia has adopted or amended numerous laws and strategies with respect to internal displacement, IDPs faced procedural difficulties in the legal system which impeded access to justice. He suggested there was also the need to create an action plan to prevent and protect against discrimination, a suggestion which has not been followed through.122 Finally, while part of Serbia, Montenegro introduced a 1992 Decree on Providing for Dislocated Persons and a 2005 Strategy for Resolving the Issues of Refugees and Internally Displaced Persons in Montenegro to respond to 18,000 IDPs from Kosovo. The 2005 strategy did not reference the Guiding Principles and simply defined an IDP as a person “displaced from Kosovo and Metohija.”123,124 Sri Lanka In Sri Lanka, a long-running conflict between the government and the Tamil minority-supported Liberation Tigers of Tamil Eelam (LTTE) triggered widespread internal displacement in the North and East of the country, peaking at 800,000 in 2001.125 In 2002, following a Norwegianled peace process, the government adopted a National Framework for Relief, Rehabilitation, and Reconciliation with the support of a World Bank technical team. The framework identified specific rights of the displaced and recommended adopting the Guiding Principles as an official policy for assisting IDPs affected by conflict.126 The framework supported widespread returns, and half the IDP population were able to return home by the end of 2003.127 Following the restart of the civil war in 2006, there were widespread allegations of abuses committed against civilians by both the government and LTTE, including the forced return of IDPs.128 In December 2007, Kälin noted that the campaign in the East saw repeated allegations on both sides that civilians were targeted, used as human shields, or prevented from fleeing hostilities . . . [and] allegations of deliberate co-location of military installations near civilian populations and indiscriminate shelling.129 From March 2008 onward, the government began confining almost all IDP civilians to detention camps, a process which continued following the end of the conflict in May 2009. By July 2009, it was estimated that 281,621 people were confined in some 30 military-guarded camps with inadequate

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living conditions. They were allowed only to leave for emergency medical care.130 The government promised to quickly return 80 percent of the IDPs to their homes; however, it reneged and only 20,000 were released by October 2009. While releases accelerated following international pressure, in January 2010, the International Crisis Group reported that returnees were being placed in transit centers in their home districts rather than to their homes. While the IOM was engaged in the transport process, neither IOM nor UNHCR had access on the ground to monitor the returns.131 This was a process which should have been governed by legislation. Two years earlier, the government had passed a Resettlement Authority Act of 2007.132 The Act defined IDPs in a limited way, including only explicitly flight “to avoid the effects of armed conflict situations of generalized violence.”133 It created a new Resettlement Authority whose mandate included “ensuring the resettlement or relocation in a safe and dignified manner of internally displaced persons and refugees” and to formulate and implement a national policy for IDPs.134 Further legislation, including an IDP Bill, was proposed in 2008 but was not advanced to Cabinet, while the government continued to commit to IDP legislation in its national human rights action plan.135 That year, the Ministry of Resettlement (rather than the Authority) was assigned the role as lead agency for responding to IDPs and the government also created a Presidential Task Force for Resettlement, Development, and Security, which IDMC notes has been “the main decision-making body on all matters of reconstruction and return in Northern province.”136 In 2013, the government developed a draft Framework for Resettlement Policy. Beyani, however, was critical of the policy for both falling significantly short of both the goals of the National Action Plan and of the comprehensive 2008 draft IDP bill. It focuses on the initial phases of conflict-induced displacement, does not encompass displacement caused by natural disasters and development projects, and is not consistent with international terminology on the three durable solutions.137 A revised draft was issued that November. While the policy acknowledged the need to provide IDPs with assistance and housing, it remained committed to return only and continued to incorporate a limited definition of IDPs.138 This includes a statement of basic principles that while the process is voluntary, “IDPs should be resettled in their places of original habitation,” with integration allowed only if this was not possible and with no financial support. It also established the Ministry of Resettlement was in charge of policy implementation, rather than the Resettlement Authority.139 Following the change in government in 2015, a new policy was drafted by the Ministry of Prison Reforms, Rehabilitation, Resettlement, and Hindu

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Religious Affairs supported by UNHCR, and was approved by the Sri Lankan Cabinet in August 2016. Separately, the government closed down the Resettlement Authority and its mandate was absorbed by the Ministry.140 The policy divides IDPs in Sri Lanka into two groups. The first—reflecting the previous IDP definition—include only those who have fled from situations of generalized violence and violations of human rights arising from the conflict. A separate clause does acknowledge other forms of displacement—including natural or human-made disasters, climate change, development projects, or possible future conflicts—but specifically notes that these groups do not come under the scope of the policy.141 The policy establishes that the state will undertake a new registration policy for all IDPs affected by the conflict, though notes that they must register by 1 May 2017. The policy notes that IDPs are entitled to the full spectrum of rights provided for by the Sri Lankan Constitution, and also that the policy is in line with applicable international instrument and informed by the Guiding Principles. The policy adheres closely to the Principles, and notes that durable solutions include return, local integration, or relocation to another suitable area in the country and that “all these settlement options are equally valid.”142 Importantly, the policy also acknowledges that there are major obstacles to durable solutions in the country, including the need to release land occupied by the military, police, and other government departments and that in cases where the land cannot be returned reparations must be provided and that other groups who do not fall within the policy need to be identified and helped through targeted programs.143 However, as one of the UNHCR PROCAP Officers who was involved in the process has noted, the challenge for the policy is implementation: Sri Lanka is currently at a critical juncture where the issue of conflictaffected displacement can be addressed and resolved. The national policy provides the framework to do so and emphasizes the collective role of all ministries and agencies, development partners and civil society to actively collaborate and partner in development programming and implementation towards achieving this end.144 There are also questions around how large the remaining IDP population is. Following his mission in 2013, Beyani noted that the Ministry of External Affairs stated that 22,000 IDPs were currently displaced, whereas UNHCR estimated that 93,447 were.145 These discrepancies are caused by two factors. First, there is evidence that some populations of displaced were not included in government figures, including those staying with host families and those suspected of being affiliated with the LTTE. It also appears that

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the government is now not including older IDPs, who had been displaced earlier in the conflict, within their counts. These older IDPs are estimated to be around 180,000–200,000 and continue to be excluded from government housing schemes and other forms of support.146 The second, related, issue is that to be officially recognized as an IDP, the person need to be registered as such by the government, and generally by local authorities. However, Beyani warned that the closure of IDP camps appears to have led to the de-registration of IDPs, who were instead treated as returnees.147 Further, while the government has promised a range of reforms around human rights issues and accountability for past crimes, there are concerns that progress has been slow and that a number of mechanisms have not been implemented.148 While the new Resettlement Policy was passed in mid-2016, the UN Committee on the Elimination of Racial Discrimination stated in October 2016 that IDPs continue “to remain displaced and face challenging living conditions in camps and delays in reintegration into society. Once reintegrated, those communities also face challenges in access to basic services, employment and adequate housing.”149 The implementation of the policy was expected to begin in February 2017.150 Overall, therefore, while the Sri Lankan government has taken positive steps to develop an IDP policy in line with the Guiding Principles, whether it will be implemented in a timely and effective manner remains to be seen. Timor-Leste The process of Timor-Leste’s independence from Indonesia in 1999 led to widespread violence and displacement, with some 450,000 IDPs being displaced by mass violence and widespread destruction caused by the Indonesian military and pro-Indonesian militias. Most IDPs were either able to return to their homes or resettled, particularly in Dili.151 TimorLeste experienced a second period of internal displacement of between 150,000 and 178,000 people following civil unrest in May 2006 triggered by the dismissal of almost half of the country’s military.152 The government initially assumed that the IDPs would return once the security situation stabilized, and focused on immediate humanitarian assistance. By the end of the year, however, returns were not occurring even as the government threatened to cut off assistance.153 While an Australian-led International Stabilization Force was deployed following the violence, IDPs had little confidence that it would provide them with security if they returned, and the UN police officers within the mission rarely patrolled the IDP camps until 2008. While international aid organizations managed the camps, their presence was affected by a lack of funding—UNHCR, for example, had to withdraw in July 2007. The cluster approach was

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implemented in Timor-Leste in 2009, but by then most IDP camps had closed.154 In late 2007, the government introduced a national recovery program, Hamutuk Hari’i Futuru (Together Building for the Future). As part of this program, the government started distributing recovery packages to IDPs who were willing to return to their homes and committed some $15 million to the program. The program noted that a main objective was to provide IDPs with “a variety of viable options that allow for their durable return or resettlement with due respect for their rights and dignity respecting the international standards established with the context of the Guiding Principles on internal displacement.”155 The Ministry of Social Services was made the lead government agency and given full implementation responsibility for the disbursement of the monetary recovery grants. While the plan received international support, the IDMC noted in October 2008 that “the government’s overall capacity to implement the strategy remains weak.” They highlighted a range of issues, including the state’s limited capacity to monitor and address protection concerns, including threats against returnees as well as widespread impunity and lack of accountability.156 Further, while the program allowed for funds to be provided for IDPs to resettle in a new area, in practice, this option was not implemented by the government, which meant that IDPs had the choice of either returning to their homes or moving to a transitional site in anticipation of return. Even so, by late 2009, the majority of IDPs had been able to return. With the closure of the last camps and the provision of compensation to their remaining residents, the government announced that there were no more IDPs in 2010, though some IDPs did remain in temporary shelters as of 2011.157 Zambia Alongside a small number of IDPs displaced by natural disasters, Zambia also has a large but undocumented development-induced displaced population.158 In 2013, the government introduced guidelines for the compensation and resettlement of internally displaced persons in an effort to domesticate its ratification of the Kampala Convention, which occurred in 2011.159 The guidelines use the IDP definition including in the Guiding Principles and prohibits discrimination against IDPs and assigned responsibility for IDPs to the Department of Resettlement. In 2015, the government also introduced a national resettlement policy160 which appears to have been implemented. The policy aims to establish that any involuntary resettlement needed to occur in line with international human rights and humanitarian law, as set out in the Guiding Principles, and that it

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should be avoided where feasible or otherwise minimized with compensation being provided.161 The policy also establishes resettlement assistance for people displaced by natural disasters.162 The Office of the Vice President through the Department of Resettlement is assigned the role of lead institution and responsibility for coordinating and implementing the policy.163

Conclusions: when implementation works What makes for successful implementation of domestic IDP laws or policies? Across these cases, a few patterns are clear. First, successful implementation is linked to strong state capacity. In Azerbaijan, an initial weak response shifted as the government improved its legislative framework and committed significant resources to its response from its state oil fund. But such efforts do not need significant domestic resources. Liberia was able to build up its capacity in close cooperation with international aid agencies and support an effective return effort. Sierra Leone similarly led an effective return strategy with the assistance of peacekeepers in the country. In Timor-Leste, the government’s own capacity was quite weak, but the government was able to contribute some funds to a return and recovery program which was successful. Accountability to other domestic institutions, most notably the courts, is also a critical factor. Colombia not only has created a strong legal framework, but similarly spends large amounts annually to support its IDP population. But this is in part because the Colombian Constitutional Court can hold the government to account for ineffective implementation. The Georgian Constitutional Court similarly has pushed the government to bring its laws in line with the Guiding Principles. Accountability to the domestic population can also drive the implementation process. In both Georgia and Sri Lanka, implementation efforts significantly improved after changes in government, one through revolution, the other through election. Accountability at the international level can also be a significant factor. In the case of Croatia, pressure from international actors including the EU led to the end of discriminatory practices toward Serbian IDPs. It is important to note, too, that not all strong commitments have created strong laws or policies. In Azerbaijan, while the state has committed significant resources to its IDP situation, its legal framework remains weak. Similarly, in Bosnia, the government has made significant commitments to return, but problems persist with the legal framework and protecting returnees of different ethnic backgrounds. In other cases, strong laws have not been followed with necessary implementing policies. In Kenya, while a strong law has been passed, a follow-up policy remains in draft form, which hampers

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IDP assistance efforts. In Serbia, in spite of strong laws, IDPs still face procedural difficulties and need a further action plan.

Notes 1 UNGA Resolution “Protection of and Assistance to Internally Displaced Persons,” A/RES/62/153, 6 Mar. 2008, 4. 2 Kälin, “Guiding Principles on Internal Displacement,” 199. 3 UNHCR, Global Report 2013 (Geneva: UNHCR, 2014), 72. 4 CHR, “Report of the Representative of the Secretary-General on Internally Displaced Persons, F.M. Deng,” E/CN.4/2002/95, 16 Jan. 2002, 26. 5 Kälin, “Guiding Principles on Internal Displacement,” 200. 6 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani,” A/HRC/26/33, 4 Apr. 2014, 16. 7 Ferris, Mooney, and Stark, “From Responsibility to Response,” 23. 8 Susan Carr, “From Theory to Practice: National and Regional Application of the Guiding Principles,” International Journal of Refugee Law 21, no. 1 (2009): 39. 9 This section develops arguments I first made in Orchard, “Implementing a Global Internally Displaced Persons Protection Regime.” 10 Ferris, Mooney, and Stark, “From Responsibility to Response,” 25. 11 Finnemore and Sikkink, “International Norm Dynamics and Political Change,” 903. 12 Frank Schimmelfennig, “The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the European Union,” International Organization 55, no. 1 (2001): 48. 13 Susan D. Hyde, “Catch Us If You Can: Election Monitoring and International Norm Diffusion,” American Journal of Political Science 55, no. 2 (2011): 359. 14 David Williams, “Aid and Sovereignty: Quasi-States and the International Financial Institutions,” Review of International Studies 26, no. 4 (2000); Lindsay Whitfield and Alastair Fraser, “Introduction: Aid and Sovereignty,” in The Politics of Aid: African Strategies for Dealing with Donors, ed. Lindsay Whitfield (Oxford: Oxford University Press, 2009). 15 UNHCR, Handbook for the Protection of Internally Displaced Persons (Geneva: UNHCR, 2007), 110. 16 Schimmelfennig, “The Community Trap,” 64; Ronald R. Krebs and Patrick Thaddeus Jackson, “Twisting Tongues and Twisting Arms: The Power of Political Rhetoric,” European Journal of International Relations 13, no. 1 (2007). 17 Erin Mooney, “Securing Durable Solutions for Displaced Persons in Georgia: The Experience in Bosnia and Herzegovina” (Paper presented at the Conference on Conflict and Migration: The Georgian-Abkhazian Case in a European Context, 2008), 2. 18 Dayton Peace Agreement, Annex 7: Refugees and Displaced Persons, 21 Nov. 1995. 19 Charles Philpott, “Though the Dog Is Dead, the Pig Must Be Killed: Finishing with Property Restitution to Bosnia-Herzegovina’s IDPs and Refugees,” Journal of Refugee Studies 18, no. 1 (2005): 5.

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20 Government of Bosnia and Herzegovina, “Law on Refugees from BiH and Displaced Persons in BiH,” 1999, www.brookings.edu/wp-content/uploads/ 2016/07/Bosnia_Law-Refugees-Displaced_2003.pdf. 21 Philpott, “Finishing with Property Restitution to Bosnia-Herzegovina’s IDPs and Refugees,” 4. 22 Ibid., 14. 23 Mooney, “Securing Durable Solutions for Displaced Persons in Georgia,” 3–4. 24 IDMC “Bosnia and Herzegovina IDP Figures Analysis,” Nov. 2014. www. internal-displacement.org/europe-the-caucasus-and-central-asia/bosnia-andherzegovina/figures-analysis. 25 Bosnia and Herzegovina Ministry of Human Rights and Refugees, “Revised Strategy of Bosnia and Herzegovina for the Implementation of Annex VII of the Dayton Peace Agreement,” June 2010, www.mhrr.gov.ba/PDF/Izbje glice/Revidirano%20strategija%20Engleski.pdf, 1. 26 Ibid., 28–9. 27 Bosnia and Herzegovina, “Council of Ministers of Bosnia and Herzegovina Holds Its 36th Session,” 23 Dec. 2015, http://vijeceministara.gov.ba/saop stenja/sjednice/saopstenja_sa_sjednica/default.aspx?id=21287&langTag=en-US. 28 Andrew Mayne, “Bosnia and Herzegovina: 20 Years on from Dayton,” Forced Migration Review no. 50 (2015): 9, 12. 29 Inmaculada Serrano, “Property Rights and Reconstruction in the Bosnian Return Process,” Forced Migration Review no. 50 (2015): 19. 30 IDMC, “Stakeholder Report to the Universal Periodic Review Mechanism: Internal Displacement in Bosnia and Herzegovina,” 14 Mar. 2014, 4. 31 Ibid., 4–6; Valery Perry, “Wartime Division in Peacetime Schools,” Forced Migration Review no. 50 (2015). 32 UNHCR, “Annex VII of the Dayton Peace Agreement, 20 Years on: Solutions Are in Sight, but Still so much to do,” 15 June 2015, http://reliefweb.int/report/ bosnia-and-herzegovina/annex-vii-dayton-peace-agreement-20-yearssolutions-are-sight-still-so. 33 Donny Meertens, “Forced Displacement and Gender Justice in Colombia,” in Case Studies on Transitional Justice and Displacement (International Centre for Transitional Justice, 2012); Elizabeth Ferris, Changing Times: The International Response to Internal Displacement in Colombia (Washington, DC: Brookings-LSE Project on Internal Displacement, 2014). 34 IDMC, “Colombia IDP Figures Analysis,” Dec. 2014, www.internaldisplacement.org/americas/colombia/figures-analysis; Nicole Summers, “Colombia’s Victims’ Law: Transitional Justice in a Time of Violent Conflict?,” Harvard Human Rights Journal 25, no. 1 (2012): 129. Official government figures are lower due to problems of under-registration. IDMC, “Colombia: New Displacement Continues, Response Still Ineffective,” 3 July 2009, 22. 35 CHR, “Profiles in Displacement: Colombia,” E/CN.4/1995/50/Add.1, 3 Oct. 1994, 20. 36 Ferris, Changing Times, 4. 37 CHR, “Profiles in Displacement: Colombia,” 23, 25. 38 Republic of Colombia, “Law 387 of 1997,” 24 July 1997, Art. 1. 39 Ibid., Art 2. 40 Ferris, Changing Times, 20. 41 Constitutional Court Decision T-327, cited in IDMC, “Known References to the Guiding Principles on Internal Displacement” (2005).

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42 HRC, Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, Addendum: Mission to Colombia (Geneva: HRC, 2007), 9; Josef Merkx, Evaluation of UNHCR’s Program for Internally Displaced People in Colombia (Geneva: UNHCR Evaluation and Policy Analysis Unit, 2003), 7. 43 Ferris, Changing Times, 20. 44 IDMC, “Colombia: Displacement Continues Despite Hopes,” 16 Jan. 2014. Summers notes that by 2008, 235,000 people had reported crimes to claim reparations but only 24 victims had received damage payments Summers, “Colombia’s Victims’ Law,” 224. 45 Ibid.; IDMC, “Colombia: Displacement Continues Despite Hopes,” 9; Ferris, Changing Times, 20–1. 46 United States Department of State, “2015 Country Reports on Human Rights Practices: Colombia,” 13 Apr. 2016, www.state.gov/j/drl/rls/hrrpt/2015/wha/ 253001.htm. 47 Martin Gottwald, “Peace in Colombia and Solutions for Its Displaced People,” Forced Migration Review no. 52 (2016): 15. 48 IDMC, “Colombia-GRID 2018 Conflict Displacement Figures Analysis,” www.internal-displacement.org/sites/default/files/2018-05/GRID%202018% 20-%20Figure%20Analysis%20-%20COLOMBIA.pdf, 2. 49 UNHCR, “Forced Displacement Growing in Colombia Despite Peace Agreement,” 10 Mar. 2017, www.unhcr.org/en-au/news/briefing/2017/3/58c26e114/ forced-displacement-growing-colombia-despite-peace-agreement.html. 50 National Commission for Reconstruction, Resettlement and Rehabilitation, “Sierra Leone Resettlement Strategy,” Oct. 2001. 51 Priscilla Hayner, “Negotiating Peace in Sierra Leone: Confronting the Justice Challenge,” Centre for Humanitarian Dialogue and International Centre for Transitional Justice, Dec. 2007, 43–4. 52 National Recovery Committee, “Recovery Strategy for Newly Accessible Areas,” May 2002. 53 The Global IDP Project, “Sierra Leone,” Oct. 2004; IRIN News, “Sierra Leone: Most Chiefdoms Now Safe for Resettlement,” 18 Apr. 2002. 54 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 55 UNHCR Policy Development and Evaluation Service, “A Catalyst and a Bridge: An Evaluation of UNHCR’s Community Empowerment Projects in Sierra Leone,” Jan. 2012, 15. 56 United Nations General Assembly, “Report on Internally Displaced Persons, Profiles in Displacement: Tajikistan,” A/51/483/Add.1, 24 Oct. 1996, 3. 57 Republic of Tajikistan, “The Law of the Republic of Tajikistan on Forced Migrants,” 1994, Art. 1–4. 58 Ibid., Art. 7. 59 Ibid., Art. 8. 60 United Nations General Assembly “Report on Internally Displaced Persons, Profiles in Displacement: Tajikistan,” A/51/483/Add.1, 24 Oct. 1996, 33. 61 HRW, “Tajik Refugees in Northern Afghanistan: Obstacles to Repatriation,” 1 May 1996, www.unhcr.org/refworld/docid/45c9a5272.html.

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62 Scott Leckie and Chris Huggins, Conflict and Housing, Land and Property Rights: A Handbook on Issues, Frameworks and Solutions (Cambridge: Cambridge University Press, 2011), 159–60. 63 Indra Øverland, “Humanitarian Organizations in Tajikistan and the Coordination of Aid to Displaced Afghans in No Man’s Land,” Journal of Refugee Studies 18, no. 2 (2005): 135. 64 S. Neil MacFarlane, Larry Minear, and Thomas J Watson, Jr., Humanitarian Action and Politics: The Case of Nagorno-Karabakh (Providence: Thomas J. Watson Jr. Institute for International Studies, 1997), 1. 65 Republic of Azerbaijan “Law of the Republic of Azerbaijan on the Status of Refugees and Forcibly Displaced Persons, Art. 1 (1999).” 66 UNHCR, “Azerbaijan: Analysis of the Gaps in the Protection of Internally Displaced Person,” 2009, 17. 67 Yulia Gureyeva-Aliyeva and Tabib Huseynov, “Can You Be an IDP for Twenty Years?,” Dec. 2011, Brookings Institution-London School of Economics Project on Internal Displacement, www.brookings.edu/research/reports/ 2011/12/idp-host-communities-azerbaijan. 68 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani: Follow-up Mission to Azerbaijan,” A/ HRC/29/34/Add.1, 8 Apr. 2015, 5. 69 UNHCR-OCHA, “Mission to the Republic of Azerbaijan, Assessment of the IDP Situation in Azerbaijan and Cooperation Mechanisms in Place to Address Their Needs,” 14–24 Mar. 2005, 11. 70 UNHCR, “Azerbaijan: Analysis of the Gaps in the Protection of Internally Displaced Person,” 2009, 17. 71 Ibid., 14. 72 IDMC, “Azerbaijan: After Some 20 Years, IDPs Still Face Barriers to Self-Reliance,” 10 Dec. 2010, www.internal-displacement.org/europe-the-cau casus-and-central-asia/azerbaijan/2010/azerbaijan-after-some-20-years-idps-stillface-barriers-to-self-reliance, 9; HRC, “Follow-up Mission to Azerbaijan,” 5. 73 Ibid., 6. 74 Government of Croatia, “Law on the Status of Displaced Persons and Refugees of 1993.” 75 HRW, “Second Class Citizens: The Serbs of Croatia,” 1 Mar. 1999, www.refworld.org/docid/3ae6a7df4.html. 76 Government of the Republic of Croatia, “Executive Order of 1991, Regarding the Establishment of the Office for Displaced Persons and Refugees,” 22 Nov. 1991, www.refworld.org/docid/3ae6b51518.html. 77 Government of the Republic of Croatia, “Decree of 1997 on Returnee Rights,” 1 Apr. 1996. 78 IDMC, “Croatia: Profile Summary,” 4 July 2001, http://reliefweb.int/report/ croatia/nrc-update-internal-displacement-croatia-profile-summary, 2. 79 HRW, “Broken Promises: Impediments to Refugee Return in Croatia,” Sept. 2002, www.hrw.org/reports/2003/croatia0903/croatia0903.pdf, 3. 80 US Department of State, “Country Reports on Human Rights Practices: Croatia,” 11 Mar. 2008, www.state.gov/j/drl/rls/hrrpt/2007/100553.htm. 81 HRW, “Broken Promises,” 4. 82 IDMC, “Croatia: Housing Right and Employment Still Preventing Durable Solutions,” 1 Sept. 2009, www.internal-displacement.org/europe-the-caucasus-

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93 94 95 96 97 98 99 100 101

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and-central-asia/croatia/2009/housing-rights-and-employment-still-preventingdurable-solutions, 32, 172. IDMC, “Georgia: Partial Progress Towards Durable Solutions for IDPs,” 21 Mar. 2012, 3. CHR, “Profiles in Displacement: Georgia,” E/CN.4/2001/5/Add.4, 25 Jan. 2001, 9, 37. CHR, “Mission to Georgia,” E/CN.4/2007/71/Add.7, 24 Mar. 2006, 9. Law of Georgia on Internally Displacement Persons, Art. 1 (as amended on 9 June 2006). CHR, “Mission to Georgia,” 12. IDMC, “Georgia: Partial Progress towards Durable Solutions for IDPs.” Ibid., 4. Ibid., 12. Council of Europe Parliamentary Assembly, “Georgia and Russia: The Humanitarian Situation in the Conflict and War-Affected Areas,” Doc. 13083, 20 Dec. 2012, 7–8. Georgian Young Lawyers’ Association, “Constitutional Court Granted GYLA’s Constitutional Claim,” 11 June 2013, https://gyla.ge/en/post/constitutionalcourt-granted-gylas-constitutional-claim-947413; Public Defender of Georgia, “Human Rights Situation of Internally Displaced Persons and Conflict Affected Individual in Georgia,” 2013, http://ombudsman.ge/uploads/other/1/1621. pdf, 11. Law of Georgia on the Internally Displaced Persons (Refugees) from the Occupied Territories of Georgia, 6 Feb. 2014. Public Defender of Georgia, “Human Rights Situation of Internally Displaced Persons and Conflict Affected Individual in Georgia,” 2013, http://ombuds man.ge/uploads/other/1/1621.pdf, 13. HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons on His Mission to Georgia,” A/HRC/35/27/Add.2, 4 Apr. 2017, 3. Public Defender of Georgia, “Human Rights Situation,” 12. HRC, “Report of the Special Rapporteur,” 4. Ibid., 9. Lucy Kiama and Fredrick Koome, “Internal Displacement in Kenya: The Quest for Durable Solutions,” Forced Migration Review no. 45 (2014). IDMC, “Kenya: Figures Analysis,” 31 Dec. 2016, www.internal-displacement. org/assets/country-profiles/KEN-Kenya-Figures-Analysis.pdf, 1. IDMC, “A Review of the Normative Framework in Kenya Relating to the Protection of IDPs,” Aug. 2015, www.internal-displacement.org/assets/publica tions/2015/20150827-af-kenya-review-of-normative-framework-relating-toprotection-of-idps-en.pdf, 11. Republic of Kenya, “The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012,” 31 Dec. 2012. Ibid., Art. II.3. Ibid., Art. 5(2), 6(1). Ibid., Art. 12(1–2), 13(d). Ibid., Art. 9(1). IDMC, “A Review of the Normative Framework in Kenya Relating to the Protection of IDPs,” Aug. 2015, www.internal-displacement.org/assets/publica tions/2015/20150827-af-kenya-review-of-normative-framework-relating-toprotection-of-idps-en.pdf, 11.

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108 Sharon Odhiambo, “Ten Years Later, Victims of Kenya’s 2007 Post-Election Violence Still Looking for Assistance,” Wilson Centre Southern Voices Blog, 26 Apr. 2017. 109 Neill Wright, Enda Savage, and Vicky Tennant, “Real-Time Evaluation of UNHCR’s IDP Operation in Liberia,” in UNHCR Policy Development and Evaluation Service (Geneva: UNHCR, 2007), 7. 110 Republic of Liberia, “Declaration of the Rights and Protection of Liberian Internally Displaced Persons,” 26 Sept. 2002, 2. 111 National Transitional Government of Liberia, “The Guiding Principles on Internally Displaced Persons: Instrument of Adoption,” 2004. 112 Republic of Liberia, “Liberia Government National Community Resettlement and Reintegration Strategy,” 2 June 2004, 5. 113 Ibid., 6–7. 114 Wright, Savage, and Tennant, “Real-Time Evaluation of UNHCR’s IDP Operation in Liberia,” 11. 115 Ibid., 3–4, 9. 116 IDMC, Internal Displacement: Global Overview of Trends and Developments in 2010 (Geneva: Internal Displacement Monitoring Centre, Norwegian Refugee Council, 2011), 49. 117 IDMC, “Workshop Report: Domesticating the Kampala Convention-Monrovia, Liberia,” 5. 118 HRC, “National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Liberia,” A/HRC/WG.6/ 22/LBR/1, 18 Feb. 2015, 16 (fn3). 119 UN IDP Interagency Working Group, “Analysis of the Situation of Internally Displaced Persons from Kosovo in Serbia and Montenegro: Law and Practice,” Belgrade, Oct. 2004, 10. 120 Ibid., 11. 121 IDMC, “Submission from the Internal Displacement Monitoring Centre (IDMC) of the NRC for Consideration by the EU Enlargement DirectorateGeneral: Serbia,” 20 May 2013, 7. 122 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons: Follow-up Mission to Serbia, Including Kosovo,” A/ HRC/26/33/Add.2, 5 June 2014. 123 Government of the Republic of Montenegro, “2005 Strategy for Resolving the Issues of Refugees and Internally Displaced Persons in Montenegro,” 3 Mar. 2005, www.refworld.org/docid/5b3f514a4.html. 124 Ibid., 7, 9. 125 IDMC, “Sri Lanka: Almost Five Years of Peace But Tens of Thousands of War-Displaced Still without Solution,” 4 Feb. 2014, 3–4. 126 Ferris, Mooney, and Stark, “From Responsibility to Response,” 289. 127 IDMC, “Sri Lanka: Profile of Internal Displacement,” 7 Apr. 2004, www.internaldisplacement.org/south-and-south-east-asia/sri-lanka/2004/. 128 IASC, “Conflict-Related Internal Displacement in Sri Lanka: April 2006–April 2007,” 2007, www.unhcr.org/en-au/protection/operations/482ae16b2/conflictrelated-internal-displacement-sri-lanka-study-forced-displacement.html. 129 HRC, “Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Mission to Sri Lanka,” A/HRC/8/6/ Add.4, paras 78 and 79; and Annex III.A.2 and III.A.3. See also HRW, “Besieged, Displaced, and Detained: The Plight of Civilians in Sri Lanka’s

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137 138 139 140

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Vanni Region,” 23 Dec. 2008, www.hrw.org/report/2008/12/23/besiegeddisplaced-and-detained/plight-civilians-sri-lankas-vanni-region. HRW, “Sri Lanka: Free Civilians from Detention Camps,” 28 July 2009. International Crisis Group, “Sri Lanka: A Bitter Peace,” 11 Jan. 2010, https:// d2071andvip0wj.cloudfront.net/b99-sri-lanka-a-bitter-peace.pdf. Parliament of the Democratic Socialist Republic of Sri Lanka, “Resettlement Authority Act, No. 09, of 2007,” 23 Mar. 2007. Ibid., 15. Ibid., 4–5. South Asians for Human Rights, a Colombo-based NGO, notes that a resettlement policy was developed by the government with UNDP’s assistance, but that “a powerful actor within the Government ordered that the process be stopped in 2008” SAHR, Reassing Internal Displacement in Sourth Asia (Colombo: South Asians for Human Rights (SAHR), 2013), 270. Ibid.; Sri Lanka, “National Action Plan for the Protection and Promotion of Human Rights, 2011–2016,” www.ohchr.org/Documents/Issues/NHRA/NPA SriLanka2011_2016.pdf, 122. IDMC, “Sri Lanka: Internal Displacement in Brief,” 31 Dec. 2013; International Crisis Group, “Sri Lanka’s North II: Rebuilding under the Military,” 16 Mar. 2012, https://d2071andvip0wj.cloudfront.net/220-sri-lanka-s-north-iirebuilding-under-the-military.pdf, 12–14. UNGA, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons: Mission to Sri Lanka,” A/HRC/26/33/Add.4, 5 June 2014, 10. Ministry of Resettlement, “A Framework for Resettlement Policy,” 6 Nov. 2013, http://resettlementmin.gov.lk/site/media/pdf/english/Resettlement%20 Policy%2007-11-13.pdf. Ibid., 3–4. Ministry of Prison Reform, Rehabilitation, Resettlement, and Hindu Religious Affairs, “Resettlement Authority,” 10 June 2015, http://resettlement min.gov.lk/site/index.php?option=com_content&view=article&id=160&Ite mid=&lang= en. Ministry of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs, “National Policy on Durable Solutions for Conflict-Affected Displacement,” 2016, http://reliefweb.int/sites/reliefweb.int/files/resources/final%20 policy.pdf, 5. Ibid., 18. Ibid., 20–1. Laurie S. Wiseberg and Mirak Raheem, “New Policy on Durable Solutions in Sri Lanka: The Challenge of Implementation,” 2 Sept. 2016, www.internaldisplacement.org/library/expert-opinion/2016/new-policy-on-durable-solutionsin-sri-lanka-the-challenge-of-implementation/. UNGA, “Mission to Sri Lanka,” 6. SAHR, Reassessing Internal Displacement in Sourth Asia, 261–2; HRC, “Report of the Special Rapporteur on Minority Issues on Her Mission to Sri Lanka,” A/HRC/34/53/Add.3, 31 Jan. 2017, 11. UNGA, “Mission to Sri Lanka,” 10–11. Amnesty International, “Amnesty International Report 2016/17–Sri Lanka,” 22 Feb. 2017, www.refworld.org/docid/58b033b03.html. UN Committee on the Elimination of Racial Discrimination, “Concluding Observations on the Combined Tenth to Seventeenth Periodic Reports of Sri Lanka,” CERD/C/LKA/CO/10-17, 6 Oct. 2016, 6.

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150 Amnesty International, “Sri Lanka.” 151 Todd Wassel, “Timor-Leste: Links between Peacebuilding, Conflict Prevention, and Durable Solutions to Displacement,” Brookings-LSE Protect on Internal Displacement, 2014, 3. 152 IRIN News, “East Timor: 100,000 IDPs Still Displaced Nearly Two Years on,” 31 Jan. 2008, www.irinnews.org/report/76508/east-timor-100-000-idps-stilldisplaced-nearly-two-years-on. 153 Douglas Kammen and S.W. Hayati, “Crisis and Rice in East Timor,” http:// etan.org/news/2007/03food.htm. 154 Wassel, “Timor-Leste,” 9–11. 155 Timor-Leste Government, “Hamutuk Hari’i Futuru,” A National Recovery Strategy, 19 Dec. 2007, www.internal-displacement.org/static_content/lawand-policy/timor-leste/200712-timor-leste-national-recovery-strategy.pdf. 156 IDMC, “Timor-Leste: IDPs Returning Home, but to Ongoing Poverty and Lack of Access to Basic Services,” 31 Oct. 2008, www.internal-displacement.org/ south-and-south-east-asia/timor-leste/2008/idps-returning-home-but-to-ongoingpoverty-and-lack-of-access-to-basic-services, 15–16. 157 IDMC, “IDPs Have Returned Home, But the Challenge of Reintegration Is Just Beginning,” 2 Dec. 2009, www.internal-displacement.org/south-and-south-eastasia/timor-leste/2009/overview, 4; IDMC, “Timor-Leste: Internal Displacement in Brief,” Dec. 2011, www.internal-displacement.org/south-and-south-east-asia/ timor-leste/summary. 158 IDMC, Global Report on Internal Displacement 2016 (Geneva: Internal Displacement Monitoring Centre, 2016), 99; IRIN, “Zambia: A New Kind of Internally Displaced People,” 7 Feb. 2008, http://reliefweb.int/report/zambia/ zambia-new-kind-internally-displaced-people. 159 Jessica Chu, Kathleen Young, and Dimuna Phiri, Large-Scale Land Acquisitions, Displacement and Resettlement in Zambia (Cape Town: PLAAS: Institute for Poverty, Land and Agrarian Studies, 2015); African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 160 See IDMC, “IDP Laws and Policies Database: Zambia,” www.internal-displa cement.org/law-and-policy/country/ZM. 161 Republic of Zambia Office of the Vice President, “National Resettlement Policy,” 21 Oct. 2015. 162 Ibid., 27. 163 Ibid., 29, 37.

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Implementation issues

Cases of limited implementation Conclusions: why does limited implementation occur?

The previous chapter focused on regional and domestic advances by governments to create laws and policies to assist and protect their own internally displaced populations. The cases in that chapter were the success stories—those where, while not without problems, governments had clearly committed to their own laws and policies which generally reflected the Guiding Principles. This chapter, by contrast, focuses on the cases where implementation of policies has occurred but where there have been issues with that process for a range of reasons leading to limited implementation. In general, implementation is problematic for one of four reasons. First, the laws and policies themselves have problems. They are frequently narrower than the Guiding Principles and other international standards, defining the status of IDPs narrowly or neglecting full durable solutions. Second, problems in the laws and policies, even once identified, tend not to be fixed. Two additional reasons are linked to conflict. In a number of cases, weak laws and policies exist but the situation that created internal displacement in the first place— usually conflicts—is successfully ended. This can lead to significant spontaneous returns, but the poor policy environment means that people who remain internally displaced tend to be forgotten. On the other hand, a robust policy environment can be challenged by a renewal or onset of conflict; ensuing capacity limitations can cause the government response to falter or fail.

Cases of limited implementation Armenia Beginning in 1989, Armenia supported ethnic Armenians in the enclave of Nagorno-Karabakh against the government of Azerbaijan. A full-scale

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conflict began in 1992 and the Nagorno-Karabakh War ended as a result of a ceasefire in 1994, which led to widespread population transfers between the two states. In 2000, there remained some 72,000 IDPs in Armenia who had been displaced by the fighting; this figure had declined to 8,400 by 2007 primarily due to return policies undertaken by the government.1 Armed clashes over the region continue, however, including heavy fighting in April 2016. Nagorno-Karabakh is a self-declared but unrecognized republic which is believed to currently have around 10,000 IDPs.2 While all but a small number of IDPs in Armenia either have been able to return home or have left the country over the past 20 years, the government’s response was limited by a lack of capacity and unwillingness to pass clear comprehensive policies. The first government bureau with a responsibility for IDPs—the State Department for Refugees—was created in 1991 and provided basic registration services.3 However, a series of reports questioned the government’s engagement with the issue. In 1998, the UN/IOM Refugees and Displaced Persons Work Group undertook a survey of Armenia. Its report concluded that IDPs had “been given almost no attention by the State, because of too many and complicated refugee and ecological migrant problems, as well as the overloaded State budget.”4 The following year, Deng made a visit to Armenia, and his report similarly concluded that “the plight of the conflict-induced internally displaced had not received any particular focus at either the national or international level and that there was little awareness of the problem . . . or the needs of the internally displaced.” In particular, Deng suggested this lack of response was both due to continued assistance to those displaced by natural disasters and because it was assumed the needs of IDPs would be addressed through more general programs.5 Such concerns led the Department for Migration and Refugees to be split off from the Ministry of Social Security and Labor in 1999 as an independent focal point for internal displacement and with a mandate to develop and coordinate implementation of a unified national policy. And yet problems persisted, with a 2002 Council of Europe report echoing the same concerns and noting that “the process of integration of the refugees and displaced persons has been constrained by unfavorable socio-economic conditions . . . the Government is lacking capacity to meet the needs of its refugees and internally displaced singlehandedly.”6 The government of Armenia did pass a Law on Population Protection in Emergency Situations in 1998. However, it provided only a limited definition for IDPs covering natural and human-made disasters, and excluding displacement as a result of conflict, human rights violations, and generalized violence.7 Instead, the government has viewed IDPs as normal citizens

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who continue to enjoy the constitutional rights as other citizens. There are government decisions and resolutions which refer specifically to IDPs, but as a 2002 review by the OSCE noted, these are ad hoc and “lack a comprehensive approach.”9 In 2007, the government commenced a new program to facilitate the return of IDPs to the border regions.10 As most returns were completed, the State Migration Service within the Ministry of Territorial Administration became the national focal point in 2010.11 Because of this, it is unclear how many people remain displaced within the country. The last official registration exercise, undertaken by the NRC and the State Migration System in 2004, estimated 8,400 people remained. Kälin noted in 2010 that remaining IDPs in Armenia “have been forgotten for too long, more should be done to improve the lives of these people who have been displaced for two decades, and this needs to be a concerted effort by the government and the international community.”12 No help was forthcoming however, with IDMC noting in 2011 that IDPs “received no targeted government or international assistance.”13 With no new surveys, registration activities, or government support, it is likely that this IDP population remains, even if it has been forgotten. Angola Angola was the first country to introduce the Guiding Principles into domestic law, in January 2001, in their “Norms for the Resettlement of Internally Displaced Populations.” There were two main drivers for this move. Angola had been subject to a long-running civil war since its independence in 1975 with the National Union for the Total Independence of Angola (UNITA), and the 1994 Lusaka Peace Protocol had broken down by the end of 1998. The renewal of fighting triggered significant internal displacement, estimated at 4.1 million by the end of 2001. There was also significant international pressure on the government to do more to assist its IDP population; NGOs including MSF and Human Rights Watch criticized the government for failing to fulfill its responsibilities toward its own population.14 Following the death of Jonas Savimbi in early 2002, the two belligerents negotiated a successful peace agreement. The government approved implementing regulations for the law in December 2002 following the peace agreement. These two documents established basic norms for the return and resettlement of IDPs in line with the Principles. Primary responsibility initially rested with the provincial governments working through a Provincial Humanitarian Coordination Group, but the 2002 Decree made the National Commission for Social and

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Productive Reintegration of Demobilized Personnel and Displaced Populations the lead agency, to pursue return and resettlement in conjunction with the provincial governments.15 The creation of these policies was widely hailed by the international community. As Deng noted in a report to the UN, “The norms themselves are a particularly welcome and timely development . . . though problems persist.”16 A UN senior inter-agency network mission similarly noted that these policies represented a “step forward.”17 The end of the civil war meant that widespread returns were possible, with 10,000 IDPs returning home per day by September 2002. However, the government demonstrated little commitment to the policies in the long-term. International NGOs reported that “effective implementation of the plans [had] been lacking,” and that widespread forced returns were occurring with little assistance provided. There was also no single UN agency which had clear formal responsibility for the protection of IDPs leading to little government accountability to international actors.18 While internal displacement in Angola had mainly ended by 2008, slow reconstruction meant many of the returnees had ongoing issues accessing health care, livelihoods, and education, while IDPs who had resettled into towns and cities experienced frequent forced evictions.19 The government ratified the Kampala Convention in 2013; however, it has not taken any steps to bring its policies in line with it.20 Angola, therefore, represents a mixed case of implementation. While the government created a relatively strong set of law and policies, its implementation was haphazard. In spite of the lack of implementation, the end of the civil war did allow for widespread returns, though IDPs continue to face issues around assistance and resettlement. Kosovo Significant internal displacement in Kosovo began in 1998, when the Serbian government responded to attacks by the Kosovo Liberation Army by directly targeting the Albanian majority population. Following failed negotiations in March 1999, NATO undertook a three-month air campaign against the Serbian government, during which time the Serbian military accelerated a campaign of ethnic cleansing, resulting in 10,000 deaths and the displacement of more than 1.3 million Kosovars, 600,000 of which became internally displaced within Kosovo and Serbia.21 In June 1999, the Security Council passed Resolution 1244,22 which placed Kosovo under a United Nations transitional administration, the United Nations Mission in Kosovo (UNMIK), and deployed a NATO-led peacekeeping force. UNMIK supported the Provisional Institutions of Self-Government for Kosovo (PISG), which took on responsibilities for providing IDPs with documentation and assisting return movements. UNMIK and the PISG

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also introduced a Manual for Sustainable Return in 2003, which was revised in 2006. The Manual used the Guiding Principles’ definition, and established that the right to return applied equally to everyone regardless of ethnicity, and that returns must be voluntary.23 That same year, UNMIK, the PISG, and the Serbian government agreed to a Protocol on Voluntary and Sustainable Return which reaffirmed the obligation of all parties to allow for the return of refugees and IDPs to their places of origin and to have their property rights restored.24 In 2008, Kosovo declared its independence from Serbia. The Republic of Kosovo adopted its first Strategy for Communities and Returns in 2009. The Strategy’s overall vision was to ensure the sustainable return of displaced persons and strengthen and stabilize Kosovar communities.25 Its focus was on both refugees and IDPs, and its IDP definition aligned with that of the Guiding Principles; however, it included both IDPs within Kosovo’s territory as well as those within Serbia, Montenegro, and Macedonia. The Strategy itself estimated that there are 243,831 remaining Kosovar IDPs, including 20,235 in Kosovo itself, 205,940 in Serbia, 16,143 in Montenegro, and 1,711 in Macedonia.26 To undertake these tasks, the Strategy made the Ministry of Communities and Returns (MCR), which had been established in 2005, the lead agency for implementation of the strategy, including developing legal regulations and promoting favorable conditions for returns.27 However, like the UNMIK manual before it, the Strategy focused on returns, rather than other durable solutions. Return remained problematic for many IDPs, with the OSCE noting in 2012 that returnees in Kosovo are still confronted by serious obstacles to their sustainable reintegration, including limited access to public services, property rights and socio-economic opportunities; the deteriorating security situation in returns sites; and tensions between receiving communities and potential returnees.28 This meant that IDMC estimates that only about 4,500 IDPs have returned to their places of origin.29 In February 2014, Kosovo adopted a new Strategy for Communities and Returns, to be implemented over the next four years. The Strategy’s objectives remained similar to those of the 2009 Strategy, including providing for the sustainable return of IDPs to their places of origin, empowering, and stabilizing local communities, developing a legal framework around return and reintegration, and improving the management of the MCR. The new strategy does adopt an IDP definition close to that of the Guiding Principles but applies it only to people who were forced or obliged to flee between January 1998 and the end of March 2004. It also

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refers to a separate category of “displaced persons in the region” including those in Serbia, Montenegro, and Macedonia, but uses a similar definition.30 However, IDMC notes that the strategy focuses on the return of IDPs to their place of origin, rather than other forms of durable solution, which is highly problematic due to the ethnic divisions created by the conflict.31 Further, while the Strategy committed to improving housing assistance to IDPs within Kosovo and the closure of collective centers,32 following a May 2015 Mission, the United Nations Special Rapporteur on the Right to Adequate Housing “expressed concern that the deep gap between law and its implementation renders housing inadequate for the most vulnerable groups in Kosovo, particularly internally displaced persons.”33 Finally, Beyani, following a September 2016 mission, noted the government needed to allow all durable solutions as an option for IDPs and raised the ongoing squalid living conditions many IDPs were in, issues also highlighted by a Council of Europe mission.34 While the government has adopted a series of strategies to deal with internal displacement, its prioritization of return over other durable solutions has meant that few IDPs have been able to return. Most, instead, remain in temporary situations and, in many cases, in squalid situations. Kyrgyzstan Between 10 and 14 June 2010, ethnic violence between the majority Kyrgyz and minority Uzbek populations rocked southern Kyrgyzstan, particularly the city of Osh. The violence was triggered by a period of uncertainty in the country. President Kurmanbek Bakiyev had been ousted by demonstrators in April, and the ineffective interim government sought the support of the Uzbek community, which, in turn, made demands for greater power and led to increasing tensions with the Kyrgyz population. At least 356 and as many as 900 people were killed.35 The violence created about 300,000 IDPs and 75,000 refugees who fled into Uzbekistan. By 20 June, 260,000 of the IDPs were accommodated by host families and some 40,000 were staying in improvised camps.36 In response, the government introduced a National Policy on Internal Displacement in November 2010. The policy does not explicitly define IDPs; rather, it states that Kyrgyz citizens whose homes were destroyed in 2010, children/ orphans and children left without parental care, family members of the deceased and missing due to events of June 2010 in Osh city and Osh and Jalal-Abad districts have a right to receive housing as a matter of priority.

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It is limited to only those 2010 events, and it does not clearly prohibit discrimination against IDPs. The policy does mandate that the Ministry of Emergency Situations assesses housing damage and reviews applications for assistance.37 The State Directorate for Reconstruction and Development also offered some housing reconstruction funds, but it has no permanent mandate. In spite of the policy, the government response was widely seen as ineffective. An IDMC report in February 2011 suggested that its response “has been compromised by its lack of funds and limited local capacity.”38 This lack of national capacity was balanced by a strong international presence, including a flash humanitarian appeal which was 60 percent funded immediately after the crisis, activating the cluster approach, and using the country as a pilot study for the UN Secretary General’s Framework on Ending Displacement in the Aftermath of Conflict. The result was that within a year all but 60,000 IDPs had been able to return, and by 2012, most damaged homes had been rebuilt.39 Mexico Since 2007, Mexico has been dealing with significant internal displacement created by criminal violence. The size of the IDP population is unclear— Ferris notes that much of the work is largely anecdotal, reflecting its links to drugs and gang violence and therefore rarely spoken of publicly.40 IDMC estimates that at least 310,527 people were internally displaced at the end of 2016, but notes that other studies have suggested it may be between 250,000 and 1 million, or even up to 1.7 million.41 The Mexican government has taken two forms of action—a General Law on Victims was passed at the national level in 2012, while two state-level laws have also been passed in the state of Chiapas in 2012 and in the state of Guerrero in 2014. While the General Law on Victims includes IDPs as persons in need of protection, in it “IDPs are not differentiated from other victims of violence.”42 In 2014, the Executive Committee for Addressing Victims which was created by the Law did note that “the situation of focused internal displacement should be considered as an autonomous victimizing event that needs to be treated with a differential and specialized approach” a decision which would allow IDPs to register as direct victims of human rights violations. In spite of this, however, the IACHR notes that denial of such recognition remained “the main obstacle to the attention of the victims of forced displacement.”43 The 2012 law for the state of Chiapas focuses on the protected internally displaced population from the 1994 Zapatistas conflict. It was drafted with the assistance of UN agencies and the Brookings-LSE project, and lays out a clear set of IDP rights to assistance and durable solutions. The authorities

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are tasked with facilitating this process. The IDP definition is in line with the Guiding Principles, and the law set up a new State Council for Integral Attention to Internal Displacement as a focal point for the law. However, as of 2014, the law had not yet been implemented.44 The 2014 law for the state of Guerrero provides similar measures but has also not been implemented yet.45 Further, the IACHR cautioned that Mexico has not passed broader laws on internal displacement to incorporate the Guiding Principles into its legal system, nor has it created “a federal level institution or focal point responsible for protecting IDPs.”46 Therefore, while Mexico has passed strong laws at the state level, their implementation and actions at the national level to provide protections to the country’s IDP population remain problematic. Peru Peru represents a clear case of a protracted IDP situation. The armed conflict between the government, the Shining Path, and the Tupac Amaru Revolutionary Movement lasted from 1980 to 2000 and displaced large numbers of IDPs. In 1995, when Deng visited Peru, it was estimated that 600,000 people were internally displaced.47 The IDP issue in Peru was first raised by an umbrella organization of domestic civil society actors, the National Committee for the Displaced, which was created in 1993 and the government responded that year by creating a Program for the Support of Resettlement (PAR). PAR focused primarily on urban development and return, even though such strategies appear to have been based on faulty surveys and were widely critiqued. It was only ten years later that the government took legislative action, passing two laws concerning internal displacement in 2004 and 2005, which followed recommendations from a national truth and reconciliation commission.48 The 2004 Law Concerning Internal Displacements uses a close approximation to the Guiding Principles’ definition though it omits natural or human-made disasters. It also provides for the rights of IDPs during displacement, return, resettlement, and reintegration, including specific language around the need for voluntary return, and also includes specific obligations for the government to protect indigenous groups with a special dependency or attachment to their land. Finally, the law put the Ministry of Women and Vulnerable Populations in charge of developing policies and supporting local authorities in assisting and making reparations to IDPs and also tasked the Ministry with creating a national register of displaced persons.49 However, at least 150,000 and as many as 230,000 people may remain internally displaced, as the national registry for displaced people does not distinguish between those who remain displaced and those who have

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found a durable solution; the government has also been criticized for registering few new IDPs.50 While the 2004 law establishes clear measures around return or other solutions, the process has been slow and IDPs have had limited access to the schemes. In addition, IDPs have difficulties integrating “locally into their host communities because of a lack of livelihood and education opportunities and language barriers.”51 Compensation is also a problem, with the reparations scheme giving IDPs a lower priority than other categories of victims, such as those who were killed or who suffered disappearances, torture, or other types of attacks.52 Thus, while Peru has provided a strong law, the process for IDPs to use it has been slow and limited. Russia The 1994 and 1999 civil wars in Chechnya led to more than 800,000 people becoming internally displaced. The government introduced a federal law on forced migrants in 1995, which has since been amended three times in 2000, 2002, and 2003.53 The law defines forced migrants to be “citizens of the Russian Federation” who had been forced to leave their place of permanent residence due to violence, persecution for reasons of race, nationality, religion, language, or membership of some particular social group or political opinion, or for being subject to a real danger of violence or persecution following hostile campaigns, or due to mass violations of public order. Further, it restricted the category to either those Russian Federation citizens who had left the territory of a foreign state or who had left the territory of one of the then 89 federal subjects or administrative districts of the Russian Federation and arrived at another. IDMC notes that because of this structure, this definition is more restrictive than that of the Principles, as “a person displaced within a subject of the Russian Federation would not qualify for forced migrant status,” and has recommended the government align its legislation with the Principles.54 People who qualified as forced migrants could be registered by the Migration Service and are entitled to a monetary allowance; however, compensation difference means that the policy favors the return of IDPs to their original residence. Such forced migrants are granted the full guarantees due them under the law as subjects of the Russian Federation, and specific rights including a residence or temporary accommodation center to be provided by the migration service. It also establishes that forced migrants will not be returned against their will to the territory they had left. The status, however, is good only for a term of five years, with the anticipation that federal and local authorities will provide for resettlement during that period and, if not, the status could be extended. In 2002, on a case

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where a forced migrant had committed a criminal act and thereby lost their status, the Russian Constitutional Court ruled that the conferral of the forced migrant status established a special legal relationship between the person and the state, including the need for assistance in settlement and the provision of compensation.55 The government estimated in 2013 that 9,900 registered forced migrants remained; however, IDMC notes that the Russian authorities have rejected most applications for status extensions and that neither local nor international organizations currently compile comprehensive figures on IDPs; hence the true number of IDPs in Russia is likely much higher.56 Thus, while the Russian Federation has clearly implemented its legislation, it remains significantly narrower than the Principles’ definition, discriminates against IDPs both by not giving status to those who have not moved from their federal subject area and by limiting the duration of IDP status and making it difficult to extend, and uses compensation payments to prioritize return. Somalia Somalia has a three-decade long history of state failure. The most recent and ongoing internal conflict, between the Federal Government of Somalia which was established in 2012 and the militant group Al-Shabaab, has been coupled with significant climate-related hazards to led to significant and protracted displacement. IDMC estimates that as of the end of 2016, there were 1.1 million IDPs, representing 10 percent of the population, though with widespread uncertainty.57 In 2009, the Transitional Federal Government signed the Kampala Convention; although the Federal Government voted to ratify it in November 2013, it has not yet submitted the ratification paperwork to the AU.58 The Federal Government pledged after its creation that it would work to reintegrate refugees and IDPs to their home areas, and the Ministry of Interior and Federalism was initially tasked with the government response. In 2013, the then President Hassan Sheikh Mohamud announced the creation of a new National Commissioner of Repatriation and Resettlement of Refugees and IDPs who would report directly to the country’s Prime Minister; however, no further action on the position appears to have been taken. That year, the government also committed to a “Somali Compact,” with the international community to pursue long-term peace and state-building.59 In 2014, the government created a policy framework on displacement, which was supported by both UNHCR and the SRSG. The policy remains in draft form but appears to be moving forward.60 While the framework does not explicitly mention the Guiding Principles, it uses its definition,

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though adds clan-based violence as a specific effect. It also specifically covers returning refugees who have suffered secondary internal displacement because they cannot return to their homes. Monitoring and implementation of the policy is to be undertaken by an oversight committee, composed of the Ministry of Interior and Federalism—which is the designated institutional focal point to coordinate IDP protection and assistance—the United Nations, and international and national NGOs. And while it has not been implemented, IDMC in cooperation with UNHCR has led training activities on it. IDMC noted in 2015 that implementation “will remain particularly challenging due to weak state capacity and scarcity of resources.”61 Kälin, who visited Somalia in 2016 as a Special Advisor to the UNHCR and UNDP-led Somalia IDP Solutions Initiative, similarly noted that it is crucial the government adopt the policy. He flagged that while capacity remains an ongoing issue, there does appear to be the political will under the current government to take action.62 In addition, the separate governance areas of Puntland and Somaliland have both introduced their own policies with the support of UNHCR and OCHA.63 Both policies use the Guiding Principles’ definition, acknowledge the rights of IDPs, establish focal point institutions—the Ministry of Interior and Local Government for Puntland and the Ministry of Resettlement, Rehabilitation, and Reintegration for Somaliland—and provide clear, durable solutions for IDPs. Thus, the Federal Government has taken steps forward to provide protection to its internally displaced population, including through a clear draft IDP policy which needs to still be implemented, but its efforts remain limited due to capacity issues. Turkey Turkey has had significant internal displacement due to the long-running conflict between the government and the Kurdish Workers’ Party (PKK), which began launching attacks against the state in 1984. Throughout this period, the government engaged in widespread “evacuations” of between 3,000 and 3,400 Kurdish settlements, which has been viewed as both a deliberate military strategy and forced and punitive against the Kurdish population.64 However, the number of IDPs in Turkey is disputed. A study by Hacettepe University in Ankara was commissioned by the government which found that between 954,000 and 1.2 million people had fled their homes between 1986 and 2005. No new figures have been produced since.65 Alternative estimates have suggested 1.5 million, while “the Kurdish political movement and civil society insist on a figure of three million to four million.”66 The government’s measures to respond to internal displacement in the 1990s were seen as inadequate, and the government continued to deny

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67

the presence of internally displaced persons in the country. In 1994, it did launch a Return to Village and Rehabilitation Project. However, a 2009 report noted that the project had been criticized on a number of grounds, including “an overall lack of transparency or clear strategy . . . a lack of consultation with IDPs” and it “was also found to be inconsistent, underfinanced and discriminatory.”68 Following a visit by Deng in 2002, which coincided with a government push to join the European Union, the government undertook a series of measures.69 This included a 2004 Law on Compensation and, in 2005, the government adopted a national IDP strategy.70 The strategy uses the Guiding Principles’ definition, noting it is a “widespread definition that is used within the context of international law.”71 This strategy identified the Ministry of Interior as the organization responsible for implementing and monitoring the policy. While the strategy has a strong emphasis on IDP return, albeit on a voluntary basis, it does allow for the provision of support and assistance to facilitate “new living conditions for those citizens who do not wish to return and their integration into their new places of settlement.”72 By 2009, the return project and the strategy had enabled the return of some 187,000 IDPs. However, the national strategy’s implementation has been delayed. While return places were supposed to be created for 13 provinces, these had not been finalized as of 2013.73 As IDMC noted in 2013, There are wide gaps between the government’s announcement of laws, policies and plans and their actual implementation. The full extent of the government’s commitment to support IDPs to return, integrate, or resettle is still unclear, particularly with regard to budgetary allocations.74 Similarly, while the compensation law has provided financial assistance to the displaced, it treats different groups of IDPs unequally.75 A renewed campaign against the PKK from July 2015 has led to at least 355,000 new IDPs, including some displaced by government demolitions and expropriations. In a 2016 report, the EU Commission noted that there is an urgent need both to compensate these newly created IDPs and for a comprehensive national action plan.76 While some assistance was provided at the state level, it appeared that “many families are unaware that the government is giving out financial aid,” instead receiving support from local authorities alongside Syrian and Iraqi refugees.77 Consequently, while Turkey has slowly developed strategy documents to deal with its protracted IDP population, implementation has been varied, and so far no national efforts have addressed new displacements since 2015.

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Uganda In Uganda, government support for the norms embodied within the Guiding Principles was tempered by strategic interests to defeat the Lord’s Resistance Army (LRA), an insurgency active in Northern Uganda since 1988. At its height, the conflict created 1.8 million IDPs, though all but some 200,000 have returned to their areas of origin since a Cessation of Hostilities Agreement was signed in August 2006.78 The government has been a champion of the Guiding Principles at the international level, including being the first to request international training on the principles in 1999 and drafting an IDP policy in 2002 which was adopted two years later. It was also the first government to ratify the Kampala Convention. Even as the policy was developed, the government engaged in two largescale operations (dubbed Iron Fist and Iron Fist II) which attempted to destroy the LRA. Beginning in 1996, the government forcibly moved civilians into “protected villages” close to military cantonments.79 Between 2002 and 2004, however, displacement more than doubled from 700,000 to 1.8 million. While large-scale movements of individuals for their own security in emergency situations are allowed, the Guiding Principles note that the authorities have a requirement to try to avoid displacement. Instead, Human Rights Watch suggested displacement was being used “to allow free UPDF movement and operations . . . as well as to remove the social base in which the LRA might find food and support.”80 In the camps, the civilian population faced “a brutal cocktail of physical violence, coercion, and sexual exploitation. An estimated 1,000 people die in these camps each week.”81 While only a small set of international actors was present throughout the 1990s, this changed following a 2003 visit by Jan Egeland, the then UN Under-Secretary General for Humanitarian Affairs, who called it the “biggest forgotten, neglected humanitarian emergency in the world today.”82 However, humanitarian actors were pressured to “remain silent on issues of government responsibility” and the government remained focused on increasing the military budget.83 Dolan suggests that the IDP policy was one of several frameworks “imposed by the international donors” which “were something of a straitjacket for the government.”84 Certainly, there was substantial international involvement in the policy’s drafting, with the government working in close cooperation in particular with the office of the Representative of the Secretary-General for Internally Displaced Persons and with the UN Office for Coordination of Humanitarian Affairs’ IDP Unit.85 The policy was strong on paper—it was based explicitly on the Guiding Principles; created an inter-agency technical committee which included

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government ministries, UN agencies, NGOs, and donors; and the Department of Disaster Preparedness and Refugees was identified as the lead ministry to implement the policy.86 However, there were concerns that the IDP policy was designed primarily to “placate international interests rather than as a forum to address the real situation of the internally displaced.”87 Local actors also felt that a new set of governance structures was being imposed on districts which were already “over-stretched and under-resourced.”88 A shift in the government’s position occurred following the UN Security Council, calling on the government to “renew its commitment to end the conflict and respond to the humanitarian situation.”89 The Uganda government pointed to the IDP policy as clear evidence they had taken action.90 Following this, the government undertook several concrete implementation steps. These included creating a joint Monitoring mechanism between the government and the UN. This was launched by Ugandan President Yoweri Museveni in May 2006, signaling a major commitment. In addition, the government dedicated new financial resources to the initiative, including funds drawn primarily from the donor community to compensate war victims.91 Government support has since lagged. A year later, this structure was subsumed within a broader Peace, Recovery, and Development Plan for Northern Uganda designed to restore law and order and to enable development. This suffered from similar issues, including “insufficient funding, incoherent project selection and widespread confusion across sectors, districts, and local communities about how implementation is supposed to proceed,” leading one analyst to argue that it was “a continuation of politics as usual.”92 However, the government signed the Kampala Convention when it opened for signatures, not surprising given the Convention was adopted in Kampala, and ratified it a year later.93

Ukraine Internal displacement in Ukraine has been caused both by the Russian occupation of Crimea—from which around 20,000 people fled in 2014— and from the ongoing Russian-supported separatist movements in the eastern Donetsk and Luhansk regions, which have declared themselves as People’s Republics. The conflict stabilized as of the end of 2016, with the International Crisis Group noting “the enclaves are poorly administered and corrupt.”94 By the end of 2016, 1.6 million IDPs were registered within the country. In October 2014, the government took its first action to respond to internal displacement. This followed international criticism, with a Special Rapporteur

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from the Council of Europe reporting that the government had “failed to grasp the scope of the problem, or to respond adequately to it,”95 and Beyani, following a mission in September 2014, noting “the Government of Ukraine must exercise primary responsibility, rapidly establish more effective systems and step up its efforts to meet the needs and protect the human rights of IDPs.”96 The government responded to such critiques by stating that “Ukraine had been taken by surprise by the crisis and the subsequent high numbers of IDPs and that they were not experienced in dealing with internal displacement situations.”97 The first step was when the Ministry of Social Policy and State Emergency Services passed Resolution 509 on 1 October 2014. The Resolution established an IDP registration system to be administered by the Ministry at the state level. Registering granted IDPs legal recognition and allowed them to access state support and housing for up to six months with the possibility of extension.98 However, the Resolution offered a confusing IDP definition, suggesting certificates of registration would be issued to citizens and permanent residents of Ukraine who were moving from temporarily occupied territory or “were forced to leave their permanent residence in settlements on the territory where bodies of state power temporarily do not exercise or not exercise in full its powers.” Further, it established that applicants could be denied certificates if they lacked circumstances which would have caused their displacement or if they had lost or had stolen identity documents until those can be reissued.99 In addition to these issues, inadequate capacity on the part of the Ministry to process applications saw some displaced people turned away, and people from territories not officially recognized as non-government controlled areas were also not eligible.100 On 20 October 2014, Regulation 509 was followed by a new Law “On ensuring of rights and freedoms of internally displaced persons.”101 The law defines IDPs as people who are citizens of Ukraine who had been forced or voluntarily left their place of residence “as a result of or in order to avoid negative impact of armed conflict, temporary occupation, situations of generalized violence, mass violations of human rights and disasters of natural or human-made origin.” The Law guaranteed the rights of IDPs, including that they have a right to protection from “forceful internal displacement or forceful return.”102 The Law further refined the registration processes, bringing Regulation 509 into legislation, but also required IDPs to provide a permanent or temporary document which proves their Ukrainian citizenship. However, the Law did not identify a specific focal point institution, instead leaving the Cabinet of Ministers in charge of coordinating and supervising the activities of executive bodies.103 The Law also had a range of weaknesses, related to IDP registration, access to social benefits and civil documentation, and the continued absence of a government

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institution as a focal point. In March 2015, the Cabinet of Ministers passed a further resolution which required IDPs to constantly confirm their actual place of residence via a stamp from the Migration Service. If this was not received, the IDP certificate became invalid.105 A revised Act was then created by a working group composed of government representatives as well as representatives from UNHCR and from the OSCE. However, in November 2015, after the Ukrainian Parliament had passed it,106 Ukrainian President Petro Poroshenko vetoed it due to a lack of a mechanism to track the movement of IDPs.107 A revised version of the bill was then passed in January 2016, which expanded the IDP definition to include displaced foreigners and stateless persons. However, “further amendments are needed to bring the IDP law into line with international standards,” continuing to establish citizenship and legal residency requirements for IDPs.108 A Cabinet of Ministers Resolution in June 2016 allowed for a wide range of evidence to be provided for the registration process, and gave the IDP certificates an unlimited validity period.109 And, in April 2016, the government established a new Ministry of Temporary Occupied Territories and Internally Displaced Persons as the designated focal point for IDP protection and to coordinate the government response. In spite of these reforms, concerns continued to be raised over the restrictive requirements of the IDP registration process, with a report by the Council of Europe urging the Ukrainian government to “revoke legislative provisions that are discriminatory, in principle or in practice, towards IDPs.”110 In addition, the government has yet to adopt a comprehensive IDP strategy focused on longer-term assistance to the internally displaced population and durable solutions for their plight.111 Ukraine demonstrates that even a state with significant capacity can easily be overwhelmed by an internal displacement crisis. While the government has now improved legislative protections for IDPs through the registration process, it remains overly restricted and the country continues to need a comprehensive IDP policy. Yemen In 2004, a dissident cleric, Hussein Badreddin al-Houthi, launched an uprising against the Yemeni government in the north of the country which was marked by some six rounds of fighting and had displaced over 340,000 people by 2010.112 The following year, popular protests broke out against the government of President Ali Abdullah Saleh, which led to a significant government crackdown and escalating violence, and separatists and Islamic militants in the south of the country also escalated attacks against the

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government, which led to the displacement of around 200,000 people. In November 2011, Saleh signed an agreement brokered by the Gulf Cooperation Council under which power would transfer to the Vice President, Abdrabbuh Mansur Hadi, who was the leader of a coalition of government and opposition parties, and Hadi then won a Presidential election in February 2012.114 While this calmed the situation in the south, in the north, the Houthis continued to fight against the government. In 2009, the government created the Executive Unit for IDPs as the national focal point for IDPs. Then, in 2013, it introduced a national policy for addressing internal displacement. The policy was developed by the Executive Unit for IDPs in close collaboration with UNHCR and is designed to provide a “coherent and comprehensive national framework for responding effectively to internal displacement in Yemen.” It includes clear goals of protecting civilians from involuntary displacement, protecting and assisting them during displacement, and creating conditions which enable safe, voluntary, and durable solutions to displacement.115 It uses the Guiding Principles’ definition for IDPs, and notes that IDPs have rights under international law and to receive protection and humanitarian assistance from the government.116 The government, through the Executive Unit for IDPs, also commits to registering all IDPs and to issue registration cards and, in collaboration with the international community, to ensure IDPs receive food assistance, shelter (including in public buildings), safe access to water and sanitation, health and medical services, education, and social assistance for those who require it. The policy also establishes that the government will provide reconstruction assistance and assist IDPs to recover their property and possessions or obtain fair compensation and shelter assistance.117 While the policy was comprehensive, the US State Department noted in 2014 that its “capacity to protect and assist persons in need was limited . . . the government provided protection and assistance to IDPs, mainly by facilitating international groups’ humanitarian efforts within limits dictated by local security concerns.”118 ECHO similarly noted that it “has limited capacities to respond to the humanitarian needs of its population. Shortage or lack of basic services, such as health care (including nutritional care) is a countrywide phenomenon,” though it also noted that “ordinary Yemenis continue to provide aid directly to displaced persons through family and communal networks.”119 In September 2014, the Houthis, with the support of pro-Saleh forces, were able to take control of the capital of Sana’a, and in March 2015, Hadi fled to Saudi Arabia. Beginning that month, Saudi Arabia and a coalition of nine other Arab states began a campaign to reinstall Hadi’s government, which led to a significant increase in the level of violence. By

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October 2016, it was estimated that 21.2 million people, or 82 percent of the total Yemeni population, were in need of humanitarian assistance,120 and in January 2017, that 2 million people were internally displaced.121 ECHO noted that the escalation meant that within the government there was “disruption or even full paralysis of basic service delivery. As funds have run short for some crucial ministries . . . basic health and social programs are no longer functioning.”122 As such, while the Yemeni government adopted a strong IDP policy, the renewal of conflict and the departure of the government from the capital has crippled its efforts to protect IDPs.

Conclusions: why does limited implementation occur? This chapter has focused on the cases where states have introduced laws and policies which are limited. In many of these situations, the policies and laws were either problematic in their form or unevenly applied. With respect to form, many of these laws and policies are more limited than the Guiding Principles in terms of either their IDP definition or how they describe durable solutions. Thus, Kyrgyzstan’s policy fails to define IDPs and does not clearly prohibit discrimination. In Kosovo, government efforts have focused primarily on return, even though returnees still face significant problems, while those who remain displaced are frequently living in squalid conditions. Russia’s law required IDPs to have left one administrative district for another and provides for only five years of status. It also uses compensation payments to prioritize return. Another issue is that identified problems in national laws and policies are not fixed. Mexico’s General Law on Victims fails to differentiate IDPs from other victims of violence, which makes it more difficult for them to register. Peru has a national registry but does not distinguish between those who remain displaced and those who have found durable solutions, and the system registers few new IDPs. In many of these cases—as in Armenia and Angola—an end to the situation which had triggered displacement did allow for widespread returns to occur, but the lack of adequate policies mean that remaining IDPs become forgotten. In Kyrgyzstan, a response international response compensated for a weak governmental policy, with the result that most IDPs were similarly able to return. In the case of Armenia, an ad hoc system meant some IDPs were not covered by policies and, once the majority of returns had been completed, the remaining IDPs were simply forgotten. Ongoing conflicts can also impede implementation. In Somalia, the Federal Government has drafted a strong policy, as have Puntland and Somaliland, but federal efforts remain limited due to a lack of capacity, access, and

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resources. In Turkey, while efforts have been made to respond to its protracted IDPs, no efforts have been made to address newer IDPs created since 2015. Uganda’s policy implementation was delayed as military actions trumped the government’s responsibilities to IDPs in the early 2000s. It was only pressure by international actors that saw the policy be fully introduced. In Ukraine, the policy response has been convoluted, with the government only slowly bringing its policies and laws in line with international principles. Finally, in Yemen, a strong IDP policy has been overshadowed by the collapse of the government and an ensuing collapse of basic services.

Notes 1 CHR, “Profiles in Displacement: Armenia,” E/CN.4/2001/5/Add.3, 6 Nov. 2000, 4; HRC, “Report Submitted by the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kalin,” A/HRC/86, 24 Apr. 2008, 11. IDMC still uses this figure as the estimated number of IDPs in the country “Armenia: Country Information 2015,” www.internal-displacement. org/database/country/?iso3=ARM. 2 Katie Engelhart, The Unrecognized Nation of the Nagorno-Karabakh Republic Faces an Uncertain Future (London: Vice UK, 2014). 3 Thomas Greene, “Internal Displacement in the North Caucasus, Azerbaijan, Armenia, and Georgia,” in The Forsaken People: Case Studies of the Internally Displaced, ed. Roberta Cohen and Francis M. Deng (Washington, DC: Brookings Institution Press, 1998), 280. 4 Cited in CHR, “Profiles in Displacement: Armenia,” 9. 5 Ibid., 9–10. 6 Council of Europe Parliamentary Assembly, “Situation of Refugees and Displaced Persons in Armenia, Azerbaijan, and Georgia,” Doc. 9480, 4 June 2002, http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp? FileID=9761&lang=EN. 7 Republic of Armenia, “The Law of the Republic of Armenia on Population Protection in Emergency Situations,” 12 Feb. 1998. 8 IDMC, “Armenia: Need to Monitor Progress towards Durable Solutions,” 23 Feb. 2010, www.internal-displacement.org/assets/library/Europe/Armenia/pdf/ 201202-eu-armenia-overview-en.pdf, 7. 9 OSCE Office for Democratic Institutions and Human Rights, “Review of Compliance of Domestic Legislation of Armenia, Georgia, and Azerbaijan with Guiding Principles on Internal Displacement,” 2001–2002, www.osce. org/odihr/17020?download=true, 3. 10 HRC, “Report by the Special Rapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani,” A/HRC/16/43, 20 Dec. 2010, 7. 11 IDMC, “Need to Monitor Progress Towards Durable Solutions,” 7. 12 HRC, “Armenia: More Must Be Done to Improve the Lives of Internally Displaced Persons in Armenia, Says UN Expert,” 20 Sept. 2010, http://reliefweb. int/report/armenia/more-must-be-done-improve-lives-internally-displacedpersons-armenia-says-un-expert. 13 IDMC, “Armenia: Internal Displacement in Brief,” Dec. 2011, www.internaldisplacement.org/europe-the-caucasus-and-central-asia/armenia/summary.

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14 NRC/Global IDP Project, “Profile of Internal Displacement: Angola,” 4 Apr. 2002, 8–10; HRW, “Struggling through Peace: Return and Resettlement in Angola,” 2003. 15 Government of Angola, “Norms on the Resettlement of Internally Displaced Populations,” Council of Ministers Decree No. 1 /01 (2001), Art. 5(1); Angolan Council of Ministers Decree No. 79/02, Annex, Art. 1 (6 Dec. 2002). 16 CHR, “Profiles in Displacement: Angola,” E/CN.4/2001/5/Add.5, 25 Jan. 2001. 17 United Nations, “Senior Inter-Agency Network on Internal Displacement: Mission to Angola 12–17 March 2001: Findings and Recommendations,” 23 Mar. 2001, http://reliefweb.int/report/angola/senior-inter-agency-networkinternal-displacement-mission-angola-12-17-march-2001. 18 HRW, “The War Is over: The Crisis of Angola’s Internally Displaced Continues,” 3 July 2002; Refugees International, “Angola: Displaced Still Require a Safety Net,” 15 Apr. 2003, http://reliefweb.int/report/angola/angola-displacedstill-require-safety-net; Andrea Lari, “Returning Home to a Normal Life? The Plight of Angola’s Internally Displaced,” Institute for Security Studies Africa Security Analysis Program Occasional Paper, 5 Feb. 2004. 19 IDMC, “Angola: Internal Displacement Brief,” 12 Dec. 2008. 20 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 21 Orchard, “Regime-Induced Displacement and Decision-Making,” 114–17. 22 UNSC, S/RES/1244, 10 June 1999. 23 UNMIK, “Revised Manual for Sustainable Return,” July 2006, www.ian.org. rs/kosovo-info/english/files-index/Revised%20Manual%20for%20Sustainable %20Return-July%2006.pdf. 24 OSCE, “An Assessment of the Voluntary Returns Process in Kosovo,” Oct. 2012, www.osce.org/kosovo/96805?download=true, 7. 25 Republic of Kosovo, “Strategy for Communities and Returns,” 2009–2013, www.internal-displacement.org/static_content/law-and-policy/kosovo/Strategy_ for_Communities_and_Returns_2009-2013.pdf, 12. 26 Ibid., 13–14. 27 Ibid., 7. 28 OSCE, “Voluntary Returns,” 4. 29 IDMC, “Submission . . . for Consideration by the EU Directorate General for Enlargement: Kosovo,” 21 May 2014, 4. 30 Republic of Kosovo, “Strategy for Communities and Return: 2014–2018,” 5 Dec. 2013. 31 IDMC, “Submission,” 2–3. 32 Republic of Kosovo, “Strategy for Communities and Return: 2014–2018,” 13, 17. 33 UN OHCHR, “Kosovo* / Right to Housing: Deep Gap between Law and Reality, UN Expert Says,” 28 May 2015, www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=16019&LangID=E#sthash.PT4bWzL9. dpuf. 34 HRC, “Serbia and Kosovo*: UN Rights Expert Calls for Bold Efforts to Unlock Protracted Displacement,” 16 Sept. 2016, www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=20514&LangID=E; Council of Europe, “Kosovo*: High Time to Restore Social Cohesion and Safeguard Media

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40 41

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Freedom,” 9 Feb. 2017, www.coe.int/en/web/portal/-/kosovo-high-time-torestore-social-cohesion-and-safeguard-media-freedom. HRW, “‘Where Is the Justice?’ Interethnic Violence in Southern Kyrgyzstan and Its Aftermath,” 16 Aug. 2010, www.hrw.org/report/2010/08/16/where-justice/ interethnic-violence-southern-kyrgyzstan-and-its-aftermath; International Crisis Group, “The Pogroms in Kyrgyzstan,” 23 Aug. 2010, www.crisisgroup.org/ europe-central-asia/central-asia/kyrgyzstan/pogroms-kyrgyzstan. WHO Europe, “Unrest in Kyrgyzstan and Refugees in Uzbekistan Situation Report,” 20 June 2010, www.euro.who.int/__data/assets/pdf_file/0005/114782/ KGZ_sitrep_20_june_2010.pdf?ua=1. IDMC, “Laws and Policies: Kyrgyzstan,” www.internal-displacement.org/lawand-policy/country/KG [translated]. IDMC, “Kyrgyzstan: Unsustainable Situation for IDPs and Returnees,” 28 Feb. 2011, www.internal-displacement.org/europe-the-caucasus-and-centralasia/kyrgyzstan/2011/overview-2011-02-28. IDMC, “Kyrgyzstan: Internal Displacement in Brief,” 31 Dec. 2012, www. internal-displacement.org/europe-the-caucasus-and-central-asia/kyrgyzstan/ summary; UNHCR, “A Year on, Southern Kyrgyzstan Still Plagued by Displacement, Lack of Trust,” 10 June 2011, www.refworld.org/topic,50ffbce526e, 50ffbce5274,4df204162,0,,COUNTRYNEWS,KGZ.html. Elizabeth Ferris, “Good News from Chiapas: But a Larger Challenge for Mexico,” Brookings Up Front, 17 Feb. 2012, www.brookings.edu/blog/upfront/2012/02/17/good-news-from-chiapas-but-a-larger-challenge-for-mexico/. IDMC, “Mexico: Figures Analysis,” www.internal-displacement.org/assets/ country-profiles/MEX-Mexico-Figures-Analysis.pdf. IDMC notes that these two other studies both have methodological issues and are likely to be overestimates. Abril Ríos, “Forced Internal Displacement in Mexico,” Human Nations, 6 Nov. 2016, http://humannations.org/blog/forced-internal-displacement-in-mexico/. Inter-American Commission on Human Rights (IACHR), “Situation of Human Rights in Mexico,” 2015, OEA/Ser.L/V/II.Doc. 44/15, 134. Sarnata Reynolds, “Mexico’s Unseen Victims,” Refugees International Field Report, 2 July 2014, www.refugeesinternational.org/reports/2015/10/13/ mexicos-unseen-victims, 6. IDMC, “IDP Laws and Policies Database: Mexico,” www.internal-displacement. org/law-and-policy/country/MX. Both laws are in Spanish only, and I have relied on IDMC interpretations of the relevant clauses. IACHR, “Situation of Human Rights in Mexico,” 134. CHR, “Internally Displaced Persons: Profiles in Displacement, Peru,” E/CN.4/ 1996/52/Add.1, 4 Jan. 1996, 3. Rafael Barrantes Segura, Reparations and Displacement in Peru (Washington, DC: Brookings Institution-LSE Project on Internal Displacement, 2012). Republic of Peru, “Law No. 28223 Concerning Internal Displacements, Art. 2 (19 May 2004)”; Republic of Peru, “Law Concerning Internal Displacements, Art. 4, Sec. 4.2 (2005).” United States Department of State, “2012 Country Reports on Human Rights Practices-Peru,” 19 Apr. 2013. Internal Displacement Monitoring Centre, “Global Report on Internal Displacement,” 19; IDMC, “Peru: Internal Displacement in Brief,” 31 Dec. 2013. Segura, “Reparations and Displacement in Peru,” 4.

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53 Russian Federation, “Federal Law No. 202-FZ of December 20, 1995 on Introducing the Amendments and Addenda to the Law of the Russian Federation on the Forced Migrants.” 54 IDMC, “Submission . . . for Consideration at the 82nd Session of the Committee on the Elimination of Racial Discrimination: Russian Federation,” 30 Jan. 2013, www.internal-displacement.org/assets/library/Europe/Russian-Federation/ pdf/10-CERD-Russia-2013.pdf, 2–3. 55 Constitutional Court of the Russian Federation, “Compliance with the Russian Federation Constitution of Article 9, Sub-Clause 1, Clause 3 and Para 1, Clause 6 of the Russian Federation Federal Law ‘On Forced Migrants’ in Connection with a Complaint Filed by Mr M.A. Mkrtychan, No. 15-I, 21 November 2002,” www.refworld.org/docid/3f4f83884.html. 56 IDMC, “Russian Federation: Internal Displacement in Brief,” Dec. 2013, www.internal-displacement.org/europe-the-caucasus-and-central-asia/russianfederation/summary; IDMC, “Submission,” 3. 57 IDMC, “Somalia: Figures Analysis,” 31 Dec. 2016, www.internal-displace ment.org/assets/country-profiles/SOM-Somalia-Figures-Analysis.pdf; Jeff Drumtra, Internal Displacement in Somalia (Washington, DC: BrookingsLSE Project on Internal Displacement, 2014), 10. 58 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 59 Drumtra, “Internal Displacement in Somalia,” 14–16. 60 Federal Government of Somalia, “Policy Framework on Displacement within Somalia,” 2014; Walter Kaelin, “Mission to Nairobi and Somalia,” 27 Jan.– 11 Feb. 2016, www.regionaldss.org/sites/default/files/2016Feb29_Kaelin_ second%20mission_%20report%20FINAL.pdf; Witness Somalia, “Uprooted by Conflict, Displaced by Forced Eviction,” 18 June 2017, http://witnesssomalia.org/index.php/2016-01-09-04-06-13/197-forced-eviction-on-the-rise-inmogadishu. 61 IDMC, “Somalia: Over a Million IDPs Need Support for Local Solutions,” 18 Mar. 2015, www.internal-displacement.org/sub-saharan-africa/somalia/2015/ somalia-over-a-million-idps-need-support-for-local-solutions. 62 Walter Kaelin, “Mission to Nairobi and Somalia,” 4–6. 63 Puntland Government of Somalia, “Ministry of Interior, Local Governments and Rural Development, Puntland Guidelines on Implementation of National IDP Policy”; “Local Integration for IDPs: National Strategic Framework 2016–2018”; Republic of Somaliland Ministry of Resettlement, “Rehabilitation & Reconstruction, Somaliland Internal Displacement Policy,” 2015. 64 Dilek Kurban, Reparations and Displacement in Turkey: Lessons Learned from the Compensation Law (Washington, DC: International Center for Transitional Justice (ICTJ) and the Brookings-LSE Project on Internal Displacement, 2012), 7. 65 DMC, “Turkey: Internal Displacement in Brief,” Dec. 2013. 66 Kurban, “Reparations and Displacement in Turkey: Lessons Learned from the Compensation Law,” 7. 67 Ibid., 8. 68 IDMC, “Turkey: Need for Continued Improvement in Response to Protracted Displacement,” 26 Oct. 2009, 7; HRW, “Still Critical: Prospects in 2005 for Internally Displaced Kurds in Turkey,” Mar 2005, www.hrw.org/reports/2005/ turkey0305/turkey0305text.pdf.

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69 Bilgin Ayata and Deniz Yükseker, “A Belated Awakening: National and International Responses to the Internal Displacement of Kurds in Turkey,” New Perspectives on Turkey 32 (Spring 2005). 70 Republic of Turkey, “Measures on the Issue of Internally Displaced Persons and the Return to Village and Rehabilitation Project in Turkey: Integrated Strategy Document,” 17 Aug. 2005. 71 Ibid., 1. 72 Ibid., 3–4. 73 IDMC, “Turkey: Internal Displacement in Brief,” Dec. 2013. 74 IDMC, “Submission . . . for Consideration by the EU Enlargement DirectorateGeneral: Turkey,” 20 May 2013, 5. 75 Kurban, “Reparations and Displacement in Turkey: Lessons Learned from the Compensation Law,” 5. 76 European Commission, “Turkey 2016 Report [Commission Staff Working Document],” SWD(2016) 366, 9 Nov. 2016, 27. 77 Zia Weise, “Turkey’s ‘Like Syria’,” Politico.eu, 21 Mar. 2016, www.politico. eu/article/turkey-like-syria-fighting-kurds-violence-militants-lockdown/. 78 IDMC, “Uganda: Difficulties Continue for Returnees and Remaining IDPs as Development Phase Begins,” 28 Dec. 2010, https://reliefweb.int/report/ uganda/uganda-difficulties-continue-returnees-and-remaining-idps-developmentphase-begins, 7. 79 Willet Weeks, Pushing the Envelope: Moving Beyond ‘Protected Villages’ in Northern Uganda (New York: UN Office for the Coordination of Humanitarian Affairs, 2002), 1. 80 HRW, “Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda,” 2005, 69. 81 Betty Bigombe and John Predergast, “Stop the Crisis in Northern Uganda,” The Philadelphia Inquirer, 21 Feb. 2006. 82 Agence France-Press, “War in Northern Uganda World’s Worst Forgotten Crisis: UN,” 11 Nov. 2003. 83 Chris Dolan and Lucy Hovil, Humanitarian Protection in Uganda: A Trojan Horse? (London: Overseas Development Institute: Humanitarian Policy Group, 2006), 12. 84 Chris Dolan, Social Torture: The Case of Northern Uganda, 1986–2006 (Oxford: Berghahn Books, 2011), 66. 85 Brookings-Bern Project on Internal Displacement & Republic of Uganda, “Workshop on the Implementation of Uganda’s National Policy for Internally Displaced Persons, Kampala, Uganda,” 3–4 July 2006. 86 Republic of Uganda, “National Policy for Internally Displaced Persons,” 2004. 87 Brookings-Bern, “Workshop,” 12; Ferris, Mooney, and Stark, “From Responsibility to Response,” 77. 88 Lucy Hovil and Moses Chrispus Okello, “Only Peace Can Restore the Confidence of the Displaced,” 13 Mar. 2006, https://reliefweb.int/report/democraticrepublic-congo/uganda-only-peace-can-restore-confidence-displaced, 17. 89 UNSC, S/RES1653, 27 Jan. 2006. 90 UNSC S/2005/785, 13 Dec. 2005, “Situation of Internally Displaced Persons in Northern Uganda, Annex”; Hovil and Okello, “Only Peace Can Restore the Confidence of the Displaced.”

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91 Roberta Cohen, Northern Uganda: National and International Responsibility (Washington, DC: The Brookings Institution, 2007), 3; Hovil and Okello, “Only Peace Can Restore the Confidence of the Displaced.” 92 Jonathan Marino, Is the PRDP Politics as Usual? Update on the Implementation of Uganda’s Peace, Recovery and Development Plan (Kampala: The Beyond Juba Project, 2008), 8–9; Internal Displacement Monitoring Centre, “Uganda: Difficulties Continue for Returnees and Remaining IDPs as Development Phase Begins,” 6; Alice Klein, “Northern Uganda’s Displaced People Are Left to Fend for Themselves,” The Guardian, 24 Jan 2012. 93 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 94 International Crisis Group, “Ukraine: Military Deadlock, Political Crisis,” 19 Dec. 2016, https://d2071andvip0wj.cloudfront.net/b085-ukraine-military-dead lock-political-crisis_0.pdf, 3. 95 Council of Europe Parliamentary Assembly, “The Humanitarian Situation of Ukraine Refugees and Displaced Persons,” 26 Jan. 2015, http://assembly.coe. int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21361&lang=en, para 4. 96 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani, Mission to Ukraine,” A/HRC/29/34/ Add.3, 2 Apr. 2015, 1. 97 Ibid., 19. 98 Suleiman Mamutov, Kateryna Moroz, Olena Vynogradova, and Elizabeth Ferris, Off to a Shaky Start: Ukrainian Government Responses to Internally Displaced Persons (Washington, DC: Brookings-LSE Project on Internal Displacement, 2015), 8. 99 Cabinet of Ministers of Ukraine Resolution 509 (Amended), “On Registration of Internally Displaced Persons from the Temporarily Occupied Territory of Ukraine and Anti-Terrorist Operation Area,” UNHCR Kyiv, 1 Oct 2014, http://unhcr.org.ua/attachments/article/1231/509amendmentsE.doc. 100 Mamutov et al., “Off to a Shaky Start: Ukrainian Government Responses to Internally Displaced Persons,” 9. 101 Law of Ukraine, “On Ensuring of Rights and Freedoms of Internally Displaced Persons,” 20 Oct. 2014, http://unhcr.org.ua/attachments/article/1231/IDPlawENG%20(3).doc. 102 Ibid., Art. 2–3. 103 Ibid., Art. 10(1). 104 IDMC, “Ukraine: Translating IDPs’ Protection into Legislative Action,” 19 Dec. 2016, www.internal-displacement.org/assets/publications/2016/20161219-idmcukraine-translating-idps-protection-legislative-action.pdf, 2. 105 Halya Coynash, “Bemused Anger as Poroshenko Vetoes Vital Law for People Forced to Flee Their Homes,” 30 Nov. 2015, Kharkiv Human Rights Protection Group, http://khpg.org/en/index.php?id=1448663743. 106 HIAS, “A Victory for Displaced People in Ukraine,” 15 Jan. 2016, www.hias. org/blog/victory-displaced-people-ukraine. 107 Coynash, “Bemused Anger.” 108 Council of Europe, “Enhancing the National Legal Framework in Ukraine for Protecting the Human Rights of Internally Displaced Persons,” June 2016, https://rm.coe.int/1680697cbc, 10, 18.

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109 IDMC, “Ukraine: Translating IDPs,” 2. 110 Ibid., 4; Council of Europe, “Enhancing the National Legal Framework in Ukraine,” 6. 111 UNHCR, “Ukraine: Key Messages on Internal Displacement,” Mar. 2017, http://reliefweb.int/sites/reliefweb.int/files/resources/2017_03_unhcr_ukraine_ key_messages_briefing_note_final_en.pdf. 112 OCHA, “Yemen Humanitarian Update Issue 8,” 14 June 2010, http://relief web.int/sites/reliefweb.int/files/resources/3EE47A00BC4B1D4A8525774300 5231E9-Full_report.pdf, 2. 113 IDMC, “Yemen: Internal Displacement Continues Amid Multiple Crises,” 17 Dec. 2012, 9. 114 ICG, “Yemen: Enduring Conflicts, Threatened Transition,” 3 July 2012. 115 Republic of Yemen Council of Ministers Executive Unit for IDPs, “National Policy for Addressing Internal Displacement in Republic of Yemen,” July 2013, 3–4. 116 Ibid., 5–8. 117 Ibid. 118 United States Department of State, “2013 Country Reports on Human Rights Practices: Yemen,” 27 Feb. 2014, www.state.gov/j/drl/rls/hrrpt/2013/nea/ 220385.htm. 119 ECHO, “Humanitarian Implementation Plan (HIP) Yemen, 2014,” 15 Oct. 2013, http://reliefweb.int/sites/reliefweb.int/files/resources/yemen_en_0.pdf, 3. 120 Ibid., 1–2. 121 UN Protection Cluster Yemen, “Task Force on Population Movement: 12th Report,” Jan. 2017, http://reliefweb.int/sites/reliefweb.int/files/resources/taskforce-on-population-movement-12th-report-january-2017.pdf. 122 ECHO, “Humanitarian Implementation Plan (HIP) Yemen, 2017,” 25 Oct. 2016, http://reliefweb.int/sites/reliefweb.int/files/resources/hip_yemen_2017. pdf, 5.

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Cases of problematic implementation Cases where no implementation has occurred Conclusions: when does implementation fail?

The previous chapter examined cases where domestic implementation of laws and policies toward IDP protection and assistance had been limited. This chapter focuses instead on the cases where implementation of the policies has either been very problematic or where despite initial commitments, laws and policies have not advanced at all. What explains these failures? As noted in Chapter 7, there are several pathways that can lead to the introduction of IDP laws and policies at the domestic level followed by a failure to successfully implement them. States may be making a good faith effort but lack the capacity or governance structures to ensure laws or policies move beyond the paper stage. They may face ongoing conflicts which limit access for governmental actors. They may have inadequate institutional support within government, with the law or policy being provided to government departments which have little knowledge or policy base or field capability. Efforts introduced at the national level may be blocked through domestic opposition, including at the state or local level. Finally, states may also be simply engaging in rhetorical action, supporting such policies and laws because there is international pressure to do so, but then making no real efforts to either finalize the documents (which may remain in a draft stage for years) or to bring their requirements into action.

Cases of problematic implementation Afghanistan The overthrow of the Taliban government by the Northern Alliance in late 2001 and the ongoing conflict since has created at least 948,000 IDPs.1 The

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government has made a number of commitments to address internal displacement but has had significant problems implementing them. An initial IDP strategy was developed in 2003 by the transitional government, with the goal of finding effective solutions for people displaced by human rights violations, conflict, and drought in accordance with the Guiding Principles.2 The effort was led by the Ministry of Refugees and Repatriation (MoRR), which oversaw a Consultative Group for Returnees and IDPs, while the Ministry of Rural Rehabilitation and Development was given responsibility to mainstream IDP issues into national development plans. The strategy had active international participation, with UNHCR serving as the Consultative Group focal point. The next year, the Ministry of Rural Rehabilitation and Development developed a National IDP Plan to encourage IDP return. However, the plan failed to attract international funding.3 Both strategies were defunct by 2011.4 Presidential Decree No. 104 on land distribution was adopted in 2005 and sought to provide housing to eligible returnees and IDPs, but key elements were not implemented: “Eligibility criteria for internally displaced persons required possession of a tazkira, documents confirming internal displacement—which are never issued by the authorities—and proof that they did not own land or a house in Afghanistan.”5 UNHCR found in 2014 that only 57,000 plots of land were allocated under the Decree following 266,000 applications.6 In 2008, the Consultative Group transitioned into a National IDP Task Force as a sub-group of the Afghanistan Protection Cluster. The Task Force formally adopted the IDP definition contained in the Principles.7 In spite of inaction by the government as the conflict situation stabilized widespread returns did occur. A 2009 UNHCR report noted the Agency had assisted 493,556 to return and that the majority of IDPs had spontaneously returned.8 However, escalating combat between NATO and the Afghan military against the Taliban insurgency from 2009 onward resulted in significant new displacement. The government also faced international pressure to introduce a national policy. In 2007, the RSG called on the government to do more to prevent displacement and assist the displaced.9 By 2012, IDMC issued a report which found that many provincial decision-makers were both confused about if and how to respond to displacement and in need of guidance.10 A separate report noted that “IDPs constitute one of the most vulnerable groups in Afghan society” but that they did not receive support “owing to the multitude of complex barriers preventing response and the achievement of durable solutions.”11 The following year, Afghanistan passed its first national policy for internally displaced person. It established a comprehensive framework of rights for IDPs as well as a range of solutions. The policy was drafted with the

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assistance of UNHCR, OCHA, the NRC, and IOM. IDMC described it at the time as a landmark and found that the policy strengthened coordination between different ministries and clearly defined the roles and responsibilities of the different line ministries, provincial governors, mayors, and other government bodies. MoRR continued to play the lead role.13 However, in a report the following month, IDMC was less optimistic, noting that coordination between development and humanitarian agencies needed to be strengthened, while domestic laws needed to be strengthened to prevent the forced evictions of IDPs. Further, IDMC argued for the need for “genuine consultation and participation of affected communities,” something which remained missing from the top-down policies.14 The government faces three significant pressures in implementing the policy. Most critically is the ongoing Taliban insurgency, with estimates suggesting that the Taliban now control up to 45 percent Afghanistan.15 The ongoing conflict has meant a steady growth in IDP numbers, with at least 948,000 people internally displaced as of June 2015.16 There is also a significant lack of capacity. One 2011 report found that both MoRR and the Afghanistan Natural Disaster Management Authority “lack the necessary resources, capacity and political clout to effectively realize their protection mandates.”17 Finally, there are also significant political obstacles to the full implementation of the policy, with the government remaining focused on IDP return at the expense of other durable solutions. Several studies in 2012 and 2013 found that the majority of IDPs wanted to integrate locally.18 While the policy supports return, local integration, and resettlement elsewhere, a 2014 report found that there was a growing “expectation gap,” as issues over land rights meant there was significant opposition at the local level to IDP integration—only around 20 percent of Afghanistan’s land is correctly titled.19 Thus an OCHA official noted that local government officials want to see IDPs return home quickly, while IDPs want to stay and that the policy is not “addressing the root, underlying causes.”20 At the provincial level, there has also been a lack of political will to move forward with action plans. Coupled with the contested April 2014 Presidential elections, this meant that by July 2015, the policy had “yet to deliver any positive tangible impact for IDPs.”21 Without this action, Glatz notes, “It is unclear which activities beyond dissemination and awareness-raising the donor community should support.”22 Following a series of interviews with members of the Afghan government, UN agencies, and NGOs, WillnerReid noted that most interviewees “openly doubted that many government employees had heard of [the policy], let alone read it.”23 Following a mission in 2016, Beyani noted that while it was a commendable policy, “its implementation has been poor and it has remained a

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neglected resource.” He pointed to a deficit of good governance and accountability as contributing factors to this failure.24 He also identified local-level implementation as problematic, noting that few district authorities were providing IDPs with a range of durable solutions.25 Thus, while Afghanistan has introduced a comprehensive policy, its implementation has been problematic due to a lack of capacity on the part of the government, domestic opposition at the local level over land return, and the ongoing conflict with the Taliban. Burundi In Burundi, during the 1993–2000 civil war, the government engaged in a deliberate “regroupment” policy to forcibly relocate the Hutu population into camps guarded by the military. Some 350,000 Burundians—out of a total displaced population of 475,500—had been displaced by these measures.26 In 2000, two missions, one by Deng and one by the UN’s senior inter-agency network, critiqued the regroupment camps for serious humanitarian assistance and protection problems. Deng recommended that the government create a comprehensive response strategy jointly with the international community, while the inter-agency mission recommended that the government create a committee to examine IDP protection and issues, access problems, and to follow-up on specific violations.27 The government also faced international pressure to end the regroupment policy and dismantle the camps, and the rebel groups made closure of the camps a precondition to peace negotiations.28 The resulting Arusha Accords, adopted in August 2000, committed the government in its Protocol IV to encourage the return, resettlement, and reintegration of refugees and sinistrés, a term which includes “all displaced, regrouped and dispersed persons and returnees.” The Protocol noted that all returnees needed to have rights as citizens restored and that all sinistrés who wished to do so be able to return to their homes and be able to recover their property or receive fair compensation. The Protocol also created a Committee for the Protection of Displaced Persons (CNRS) to coordinate these activities and to provide assistance.29 The Accords led to a national referendum in 2005 which endorsed a new power-sharing constitution, and Pierre Nkurunziza was then elected as Burundi’s president. In 2001, the government issued a further “Protocol for the Creation of a Permanent Framework for Consultation on the Protection of Displaced Persons”30 which established a framework through which the government would cooperate with the international community. The Preamble to the Protocol states that the government is “bound by the United Nations Guiding Principles on Internal Displacement.”

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However, both documents were widely ignored by the government, with UN officials reporting that widespread forced relocations for security reasons and other rights violations were common. The CNRS, for example, was not established until March 2003 and was not independent from the government.31 There were also problems with the international response, with UN agencies and other NGOs critiqued for not being more proactive in protecting IDPs: “What appeared to be the case in Burundi is that most agencies recognized that insufficient assistance and protection was being provided to IDPs but none was willing to step forward to insist that more be done.”32 In 2004, the “Programme National de Réhabilitation des Sinistrés” was passed with the goal of contributing to peace and reconciliation through reintegration of displaced persons, rehabilitation of social services in areas of return, and the creation of durable solutions. The government did continue to encourage returns, including through a 2010 national reintegration strategy that made the return of IDPs or improved facilities in IDP settlements an “essential objective.”33 While most IDPs indicated that they wished to integrate locally, the government and UNHCR pursued a pilot project in 2013 to support voluntary returns. The government also ratified the Great Lakes Protocol and signed on to the Kampala Convention in 2009.34 However, longterm resettlement proved elusive for some IDPs, and in January 2015, up to 77,600 IDPs remained in situations of protracted displacement.35 The escalating violence following President Nkurunziza’s announcement that he planned to seek a third term in office in April 2015 triggered new displacements, as the government undertook targeted killings and arbitrary imprisonment of people in the opposition, civil society actors, and members of the media.36 An independent investigation created by the Human Rights Council found clear evidence of gross human rights violations by the government which may amount to crimes against humanity.37 This led by March 2017 to 405,000 refugees having fled the country and the internal displacement of around 304,000 people.38 The government has done nothing to respond to these flows, with Refugees International noting that much of the internal displacement has been concealed due to IDPs’ motives for flight and concerns that they will be arrested at the border if they seek to flee the country.39 Thus, while the process created in the Arusha Accords did allow for the return of the significant majority of IDPs—albeit with significant international pressure being deployed at key periods—in the face of this new period of displacement, the government appears to have abandoned its responsibilities. Guatemala The 36-year civil war in Guatemala, which ended in 1996, displaced large numbers of people. Estimates are unclear—the Guatemalan Truth

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Commission estimated that between 350,000 and 1,350,000 people were forced to flee between 1981 and 1983, when the bulk of human rights abuses occurred, while more recently, the National Reparation Commission has suggested that that many people were not included in that process.40 In 1994, the government and the Guatemala National Revolutionary Unity rebel group adopted an Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict with the assistance of the UN and UNHCR. The agreement focuses on reintegrating returning refugees and IDPs, and the government accepted the responsibility for implementing a range of obligations through a Technical Committee to be composed of government and NGO representatives and representatives from the displaced community. The Technical Committee became operational in 1996. The agreement applies to “uprooted populations” which are defined as encompassing “all persons who have been uprooted for reasons connected with the armed conflict, whether they live within or outside Guatemala, and shall include, in particular, refugees, returnees and internally displaced persons.” Thus, it is restricted to displacement from armed conflict only. While focusing on a resettlement strategy, the agreement notes that it shall not be “discriminatory and shall promote the reconciliation of the interests of the resettled population groups and the population groups already living in the resettlement areas” and that the uprooted population have rights to a voluntary durable solution and to return in safety and dignity. The Agreement was part of a wider set of peace accords, and other agreements included within them also focused on the rights of the displaced including on human rights and the rights of indigenous people.41 The agreement, however, had implementation problems. A report by the IACHR noted in 2001 that many IDPs were not recognized through the process and had not received adequate support from the state. In addition, the government moved away from the strategy to focus on targeting poor populations as a whole. Thus, the IACHR pointed to a number of ongoing issues with respect to the return of IDPs, including that “many of the displaced are not recognized as such; they remain dispersed and living in conditions of poverty and marginalization.”42 Similarly, Weiss Fagen argues that neither the Technical Committee nor “any other state body actually executed projects or programs or had jurisdiction over assistance to IDPs” and that with the shift to combating poverty, “while IDPs benefited from the rights confirmed in the peace accords, their specific needs were not addressed institutionally in the same way as those of refugees.”43 This shift in policy means that the government ceased officially recognizing these people as internally displaced. In more recent years, the rise of organized crime and in particular narcotics traffickers supported by Mexican-based organizations has led to

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renewed displacement within the country as levels of crime skyrocketed, with Guatemala as of 2016 having the fifth highest rates of homicide in the world. In December 2014, IDMC estimated that there were at least 248,500 IDPs in Guatemala, including 242,000 long-term displaced from the civil war.44 Internal displacement in the country is growing, with organized crime networks engaging in deliberate displacement to create “narco territories.” There are suggestions that as much as 60 percent of Guatemala’s territory is now under effective control of the traffickers.45 However, the lack of state recognition for IDPs means that there are few programs to assist and protect them, while infiltration of state institutions and weak legislation means IDPs have little faith in the criminal justice system.46 As an Amnesty International report noted, in the course of meeting government officials from Guatemala as well as Honduras and El Salvador, “over the course of nearly a dozen meetings with various government officials . . . not one would fully admit . . . that violence or insecurity was driving the increase in migration and asylum applications.”47 Some steps have been taken—the US State Department notes that the Guatemalan government does provide some IDPs with food aid.48 However, without adequate national legislation or a clear response by the government, the IDP situation is being ignored. Indonesia The resignation of President Suharto in 1998 renewed separatist movements and created wider political uncertainty which led to a series of intra-religious and interethnic conflicts in several parts of the country.49 By 2002, this violence led to the internal displacement of around 1.4 million people. The government introduced “National Policies on the Handling of Internally Displaced Persons/Refugees in Indonesia,” the drafting of which was supported by OCHA and which provided for return, local integration, or settlement elsewhere in the country. With the return of nearly all those displaced by violence, the policy was discontinued in 2004.50 Following the Asian Tsunami in 2004, the government introduced new legislation around IDP rights. The 2007 Law on Disaster Management created a new government body, the National Board for Disaster Management (BNPB), which is responsible for people displaced by both natural and “social” disasters, including conflicts between community groups and terrorism. The government also accepted its responsibility to protect people against the impact of disasters. However, the Law does not mention the Guiding Principles, and uses “pengungsi,” a term which can refer to both internally displaced persons and refugees.51 A 2012 Law on the Handling of Social Conflict does offer a definition of IDPs and specific actions during

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an emergency to protect them. However, the Law as of July 2015 had not taken effect in the provinces.52 The Law also provides a significant role for the Indonesian military in responding to social conflicts which had led to civil society concerns.53 Government estimates as of July 2015 suggest that there are 31,000 IDPs in the country who were displaced by the violence between 1998 and 2004 and are, therefore, in protracted displacement. However, IDMC has cautioned that this is likely a significant underestimate of the total IDP population, “as it did not take into account ongoing displacement in Papua and West Papua provinces, as well as a number of displacement events elsewhere in the country.”54 The conflict between the Indonesian Armed Forces and the Free Papua Movement in West Papua and associated counter-insurgency operations have led to the flight of several thousand people in 2013 and 2014, but the government has restricted access to humanitarian agencies.55 In 2013, the UN Human Rights Committee noted its concerns around “increased reports of excessive use of forced and extrajudicial killings by the police and the military during protests.”56 Thus, while the vast majority of IDPs displaced between 1999 and 2004 have been able to return home or otherwise find durable solutions, legal protections for IDPs remain weakly implemented and are not applied to ongoing conflicts including in West Papua. Iraq Iraq has faced a significant ongoing internal displacement crisis since sectarian violence broke out in 2006, following the US-led invasion in 2003. It is estimated that up to 1.1 million people were displaced between 2006 and 2013, while an estimated additional 1 million people were either created by previous waves of displacement or have not been registered by the authorities, which has only registered displacement as of 2006.57 In 2008, the government created a comprehensive national policy on displacement, which was supported by UNHCR. The policy uses the same definition as the Guiding Principles, and the government argues that they have become “part of international law.”58 The goals of the policy is to find durable solutions and to set an effective, realistic, and comprehensive framework to respond to the needs of the displaced persons . . . including by providing them with protection and assistance, through coordination structures among all state institutions, and by allocating funds.59 The policy specifies that IDPs have a range of rights, including protection against arbitrary displacement, in line with the Principles. The policy assigns responsibilities to the ministerial committee on IDPs, which is appointed by the cabinet, and to the Ministry of Displacement and Migration.

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While the policy was strong on paper, it is widely viewed as a failure due to a range of implementation difficulties including a failure both to adopt appropriate legislation to further the plan and to provide adequate resources.60 In addition, the policy focused on returns, whereas many IDPs preferred to resettle or to integrate into the communities they have been displaced in. Thus, following a mission in 2015, Beyani noted that the policy “does not currently appear to represent an effective basis for action as it is not implemented by government officials in practice.”61 The government has tried to revitalize the policy on a number of occasions. In 2010, as part of its Universal Periodic Review of human rights, the government committed to strengthening policies and to further international cooperation with respect to IDPs, including by developing a new national plan.62 That same year, the Ministry of Displacement and Migration committed to “close the IDP file in Iraq and deal with all its negative impacts on the persons of concern and the Iraqi society in general” through a new four-year plan, and in 2012, it introduced a further revised displacement plan.63 Finally, in July 2014, it established a Supreme Committee for Displaced Persons, with US$819 million in government financing64— IDMC noted that this was “to cut through bureaucratic red tape so as to provide quick assistance to IDPs.”65 With the rise of the Islamic State, however, the government has faced new challenges including its loss of control over significant portions of its territory. This has meant that protection for IDPs has fallen either to the Kurdish government or to numerous non-state actors within the country and the government’s response has been largely reactive. In addition, the government has continued to prioritize IDP return, rather than local integration, which the Special Rapporteur was informed it “currently does not consider as a viable alternative to returns.”66 Thus, the conflict with the Islamic State has significantly undermined an already poorly implemented national framework for IDPs. Lebanon The long-running civil war between 1975 and 1989 displaced an estimated 810,000 people, with about 450,000 persons remaining displaced at the end of the war.67 In 1992, the government created the Ministry of Displaced and set up a central fund for the displaced. The following year, Law 190 assigned the Ministry and Fund for the Displaced to deal with all matters related to the displaced in all Lebanese territories, in particular securing their return to their regions and their villages and

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improving their conditions in all social and economic aspects and enabling them to enjoy stability in their places of residence.68 However, Leenders notes that because the law did not define displacement, “the door was wide open for conflicting interpretations of what the ministry and the fund were meant to accomplish and whom they were supposed to serve.” The result, he adds, was that the fund was used for practically every socioeconomic problem that could be linked to warfare.69 Among other actions, the Ministry had, by 1998, paid compensation to some 51,000 people who were required to leave properties that they had illegally occupied. Further, UNDP and other actors criticized the government for focusing solely on return. Finally, by 1999, the US Committee for Refugees and Immigrants noted that there were no reliable figures on the number of returned IDPs and “indications are that the pace of return has been slow and that most have not returned.”70 The 2006 war between Hezbollah and Israel displaced around 1 million people, three quarters of them IDPs. The government established a High Relief Commission to coordinate both national and international assistance and launched a national reconstruction plan. However, within four days of the ceasefire, around 90 percent of the IDPs had returned to their areas of origin, and by November 2010, IDMC notes that all sources interviewed “reported that there were no remaining IDPs from the 2006 war.”71 Law 190 appears to have not been used, and IDMC notes that the lack of a national internal displacement policy “led to differences in the assistance provided to displaced communities.”72 Hamieh and Mac Ginty argue that “Hezbollah seemed the most effective on-the-ground actor . . . for many Lebanese, Hezbollah’s reconstruction activism contrasted with the seeming inefficiency of the state.”73 Thus, while Lebanon has one of the oldest laws covering internal displacement, the lack of capacity of the state coupled with the lack of a clear policy meant that the government was superseded by other actors in responding to displacement in 2006. Sudan The government of Sudan passed a national policy on internal displacement in 2009. The policy notes that it takes into consideration the Guiding Principles, along with the Interim National Constitution of Sudan (2005). Its definition, however, does not align with that of the Guiding Principles, noting only that IDPs are “persons or groups of persons who have been forced or obliged to flee or leave their homes or places of habitual residence, in particular, as a result of natural or human-made disasters and have not crossed the Sudanese border.”74

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The policy states that IDPs are Sudanese citizens and that they are entitled “without discrimination to all rights, privileges and obligations” and also that assistance should be provided “without discrimination due to religion, ethnicity or affiliation and . . . on the basis of rights and needs.”75 The policy suggests that “all levels of government—from the federal to the local level—are responsible for the effective fulfillment” of the guarantees in the policy, and a High Committee on IDPs was tasked with planning for protection and assistance. Under the policy, the government accepts that it will provide “preparedness measures” to “prevent, mitigate and timely respond to disasters” when they unfold; to work with IDPs during displacement including through the provision of humanitarian aid, protection, and working to fulfill their rights; and to provide security, identification documents, livelihood assistance, and basic services to IDPs.76 The government also commits to providing a range of options to IDPs, including through voluntary return, integration, or resettlement.77 Finally, while it notes that IDPs have a range of rights, the policy finds that it is permissible under the constitution “to suspend some of the rights partially and temporarily in specific situations that deem necessary for public interest related to safety and security.”78 While the policy appears to be fairly comprehensive, it is a good example of a policy which has not been implemented.79 The UN Assistance Mission in Darfur has frequently found its access to IDP camps blocked by the government, and when it sought to create a joint verification mechanism with the government in 2009 in line with the policy, the government simply failed to respond to the proposal.80 Further, within a year, the government introduced a new strategy for Darfur81 which, UNHCR warned, “focuses solely on return rather than the range of durable solutions that IDPs might choose following prolonged periods of displacement in predominantly urban areas” and that it is “essential to uphold the voluntariness of and full range of durable solutions for IDPs in conditions of safety and dignity.”82 Similarly, following a mission in December 2012, Beyani noted that the implementation of the policy however, has been slow, in part due to the lack of fully functional government monitoring mechanisms, such as the High Committee on IDPs. With regard to implementation, relevant stakeholders note a lack of due recognition and attention to IDPs outside of camps and settlements.83 In a 2013 report, IDMC suggested that while there has been some progress in implementation, it had been slow and insufficient due to access issues, funding problems, weak institutional capacity, and because “security concerns often override the response to IDP needs.”84 The new Darfur

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Regional Authority was launched in 2013, having been established by the Doha Document for Peace and Darfur, and undertook IDP registration activities to support voluntary returns.85 However, in 2016, the government dissolved the Darfur Regional Authority and announced that IDP camps in Darfur would be shut down in spite of an increase in the IDP population.86 Zimbabwe Beginning in 2000, President Robert Mugabe of Zimbabwe began to encourage land invasions of white-owned farms, and in 2002, white farm owners were ordered to vacate their farms. These policies led to significant unemployment, and many of the farms were either distributed to members of Mugabe’s circle or were left empty. It also caused agricultural production to collapse—in 2003, half of the population was considered food insecure while by early 2009, three quarters of the population was relying on international assistance. In the 2008 elections, the opposition Movement for Democratic Change (MDC) won a plurality of the votes, leading to significant violence directed by Mugabe’s party, the ruling Zimbabwe African National Union-Patriotic Front (ZANU–PF), against MDC supporters, which led to at least 200 people being killed, and 5,000 being tortured or beaten.87 In 2009, OCHA estimated that the election violence directly displaced around 36,000 people.88 However, it is commonly suggested that the wider economic collapse led to around 2 million Zimbabweans crossing into neighboring countries between 2000 and 2012, most of whom did not qualify for refugee status.89 Following international pressure, the ZANU–PF and MDC negotiated a Global Political Agreement in September 2008. The Agreement took the first steps to recognize internal displacement in country, noting that “all displaced persons shall be entitled to humanitarian and food assistance to enable them to return and settle in their original homes and that social welfare organizations shall be allowed to render such assistance as might be required.”90 The two parties also signed a Memorandum of Understanding in July 2008 in which they committed to working together in the interim to ensure the safety of displaced persons and their safe return and “that humanitarian and social welfare organizations are enabled to render such assistance as might be required.”91 The Global Political Agreement appeared to mark a turning point in how the government viewed IDP issues. It supported an unreleased joint IDP assessment in 2009. In 2010, the government referred to internally displaced persons specifically—prior to that time, it had always instead referred only to “mobile and vulnerable populations.” Humanitarian access also expanded during this period.92 Finally, the government also signed onto the Kampala

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Convention when it was opened for signing in October 2009 and completed its ratification process in November 2013.93 However, extensive human rights violations continued to occur.94 With new elections in 2013, the Agreement and Memorandum both expired, and little action has been taken since.95 An analysis of Zimbabwe’s normative framework around IDP protection undertaken by the IDMC in 2014 notes that while these strong commitments were made, “this arrangement has not led to the enactment of any subsequent legislation which cements the safety of displaced persons,” nor has the government made an effort to translate its ratification of the Kampala Convention into legislation.96

Cases where no implementation has occurred Central African Republic Central African Republic (CAR) has had several periods of internal displacement. The Bush War, which took place between 2005 and 2007 between the government of François Bozizé and several rebel organizations, internally displaced some 197,000 people. In 2008, the government ratified the Great Lakes Protocol, which, under CAR’s Constitution, is both binding and takes precedence over national laws. However, the government made no moves to create a specific legal framework to protect IDPs .97 In 2010, the government ratified the Kampala Convention, but similarly took no further actions.98 In 2012, a new rebel coalition, the Séléka, emerged and overthrew Bozizé’s government and created a new government under Michel Djotodia. The Séléka were primarily supported by the Muslim population, and a rival set of Christian militias, the anti-balaka, began attacking Djotodia’s government. Djotodia resigned as part of a deal in January 2014 and Catherine Samba-Panza was elected as interim president. The Séléka and antibalaka signed a ceasefire agreement in July 2014, which left the country in a state of de facto partition. Faustin-Archange Touadéra was elected as the new President in February 2016. The African Union deployed a peacekeeping mission in December 2013, supplemented by 2,000 French troops, and the United Nations took over the mandate in September 2014.99 The violence led to significant displacement across the country, with a UN commission of inquiry determining in December 2014 that the anti-balaka had committed ethnic cleansing against the Muslim population and that the presence of peacekeepers had been responsible for “the prevention of an even greater explosion of violence.”100 By May 2015, IDMC estimated that there were 426,000 IDPs.

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Bozizé’s government had begun developing a draft national law on internal displacement in 2012, but IDMC notes that “according to the government and its committee on the law, the text was looted during the current conflict and they have had to start again from scratch.”101 Under the Samba-Panza government, the process was restarted with significant support from the UN’s Protection cluster, which led to a draft national law on internal displacement and a policy on internal displacement, and the appointment of the Ministry of Health and Humanitarian Action as the focal point for the process. The government’s implementation road map makes it clear that the government aims to domesticate both the Kampala Convention and the Great Lakes Protocol, and to use IDP definition contained within them.102 However, the UN’s Global Protection Cluster notes that “progress on the law has nevertheless waned.”103 However, the government continues to lack capacity and suffers from a lack of authority, including being unable to provide even basic services outside the capital of Bangui. IDPs also told IDMC in interviews that they were experiencing pressure from “authorities and humanitarian organizations to return to their homes, despite the feeling among those affected that security and law enforcement had not reached the threshold for them to do.”104 And, while CAR was declared a level three emergency by the IASC in December 2013, which created a common humanitarian fund for the CAR, it has been significantly underfunded, receiving only 37.9 percent of requested funds in 2016.105 Thus, while the government has made indications that it plans to create a law, a lack of general capacity has stalled the process. Democratic Republic of Congo The conflict in Democratic Republic of Congo (DRC) has produced widespread displacement over two decades. As of 2016, there were an estimated 1.7 million IDPs in the DRC.106 The government has “long been criticized for lacking the technical capacity, the financial resources, and the political will to address the needs of the chronically displaced in the country.”107 In 2002, the government did establish an inter-ministerial committee, the Comité National pour les Refugiés (CNR), for refugee and IDP protection and assistance. However, White notes that the CNR is effectively “an implementing partner of UNHCR rather than . . . an independent, selffinanced government entity. Its activities are fully supported by UNHCR with only nominal, if any, monetary contributions made by the government to address the IDP issue.”108 At a regional meeting on internal displacement in 2005, a representative of the Ministry of Social Affairs noted “that in addition to coordination problems, lack of a legislative framework

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based on the Guiding Principles was hindering progress in mounting an effective national response.”109 In a mission in early 2008, Kälin echoed this, noting that he “regrets the lack of a legal framework, a government strategy and clearly demarcated areas of competence.”110 Later that year, the government did pass an Ordinance which assigned the role of IDP protection and assistance to two government ministries—the Ministry of Interior and Ministry of Social Affairs. However, these ministries lack capacity and resources to provide significant IDP support, and there is no clear division of roles and coordination.111 In 2008, DRC adopted the Great Lakes Protocol, and in 2014, it ratified the Kampala Convention. More recently, as part of government commitments to the peace process which began in 2013, it did commit to facilitating the return and reintegration of conflict-affected IDPs and refugees.112 Since 2014, the government has also been working with UNHCR and the Protection Cluster to develop its own national legislation. The draft provides a clear reference to the Guiding Principles and its IDP definition and focuses on prevention, protection, assistance, and durable solutions for IDPs within DRC. It also clearly prohibits arbitrary displacement in line with the Kampala Convention. However, there are suggestions that “Congolese authorities strongly favor return as the best solution for IDPs” and have engaged in camp closures to encourage IDPs to return to areas where they still feel insecure.113 However, the law has been stalled at the review stage for four years.114 Thus, while the government committed to legislation along with ratifying the Great Lakes Protocol and the Kampala Convention, it has done little to actually implement new laws. India As of 2015, over 600,000 people were displaced in Northern India as a result of armed conflict and intercommunal violence. However, there are no national policies or legislation with respect to conflict-induced displacement. In 2004, India did create a “National Policy on Resettlement and Rehabilitation for Project Affected Families” which is designed to provide relief to groups including those displaced by large-scale development projects. The policy established that the central government will implement it, and that a National Monitoring Committee, chaired by the Department of Land Resources, will monitor it. In 2007, the government introduced a Rehabilitation and Resettlement Policy, which remained focused on development-induced displacement. IDMC has been critical of the lack of a response to conflict-induced displacement, noting that the lack of a national policy or legislation covering those situations was leading to a “lack of a systematic response to violence-induced displacement by various

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government authorities in the north-east and elsewhere in India, and their failure to monitor the various situations of internal displacement.”115 Nepal In Nepal, a strong initial commitment by the government to an IDP policy has been stillborn. The government fought a civil war with Maoists guerrillas for a decade until a peace agreement was signed in 2006. The war created between 200,000 and 400,000 IDPs, the majority of whom fled insecurity as well as “forced recruitment and harassment by the Maoists and intimidation by the security forces.”116 The peace agreement triggered large-scale spontaneous and supported returns. By 2010, the internally displaced population of the country had fallen to 50,000.117 Both sides made a formal commitment to allow the displaced to return voluntarily “without any political prejudice” in the peace agreement, a finding that Kälin noted “certainly contributed to finding durable solutions for many IDPs.”118 This followed commitments toward IDP return made by both the Maoists and the Nepalese government in two earlier documents, the 2005 12-point agreement and 2006 ceasefire code of conduct .119 It also reflected pressure from domestic civil society organizations including the Maoist Victim’s Association, which staged a number of protests in 2005 to recognize the status of IDPs and to ensure their protection,120 and international pressure, including from Kälin, who provided the negotiators with a list of items he thought necessary to “ensure that the human rights of IDPs were taken into account.”121 The 2007 policy is viewed “comprehensive in scope” and referred explicitly to the Guiding Principles. It laid out a clear administrative structure led by the Ministry of Peace and Reconstruction. It also removed a former discriminatory standard in which only those people displaced by the Maoist insurgency were recognized as being internally displaced. However, the policy had several limitations including that while it recognized a range of durable solutions, it provided assistance only to those returning home. The joint secretary of the Ministry arguing that it did not have “the money to integrate and resettle uprooted families.”122 It also had only limited applicability in the event of natural disasters, a key issue given Nepal’s natural disaster risk,123 including the Kathmandu earthquakes of 2015. While directives were formulated to implement the policy, the Nepalese Cabinet has not moved to approve them.124 One survey found that few government officials were aware of the policy, even when they were nominally directly responsible for its implementation. Similarly, only 35 percent of IDPs and returnees surveyed were aware of it.125 Thus, the IDMC has concluded that “the absence of government approval

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is undermining return and rehabilitation efforts and preventing IDPs from enjoying their full rights.”126 International pressure has been applied unsuccessfully by both the NGO community and the United Nations. With respect to the NGO community, the Norwegian Refugee Council (NRC) had sought to apply pressure, including commissioning the previous study with an NGO consortium. However, the dramatic decline in IDP numbers meant they closed their office in the country in 2009, noting that “NRC believes that the needs of IDPs can be addressed by the government of Nepal with the support of the donor community.”127 The NRC itself flagged that the “government lacked political will” to take action on the issue, while their departure was seen by nationals as being driven in part by “the lack of [a] conducive political and bureaucratic environment .”128 The UN has remained conscious of the importance of the policy. The 2011 UN peacebuilding strategy for Nepal flagged “implementation of the comprehensive national IDP policy and guidelines” as a “critical peace-building benchmark.”129 In addition, in 2010, a senior advisor from the UN Protection Standby Capacity Project (PROCAP) arrived in Nepal to support the government in revising and disseminating the policy. However, in spite of the advisor’s efforts and those of the broader Protection Cluster in Nepal, the Cabinet has not approved the policy’s procedural directives and consequently the Policy has not been disseminated.130 Nigeria The Boko Haram insurgency has displaced over 2.2 million people in the north-east of the country, while ongoing intercommunal conflicts in the country’s middle belt may have also displaced hundreds of thousands more over the past 15 years.131 The scale of the conflict has meant that humanitarian assistance into camps have been limited, and Human Rights Watch has alleged that both the security forces and vigilante civilian selfdefense groups have been guilty of widespread sexual abuse and other forms of gender-based violence particularly of women and girl IDPs in the camps.132 However, the national government has only slowly responded to the crisis. In 2002, the National Commission for Refugees had been directed to manage IDPs.133 The government ratified the Kampala Convention in 2012 but has failed to introduce either policy or legislation around IDP issues. This has not been for want of trying. The government has developed several draft national policies for the protection of internally displaced persons in 2006, 2009, and 2012; however, the policies have never been adopted.134 The country has been encouraged by international actors to

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adopt a policy—for example, the Committee on the Rights of the Child in 2010 urged the government to “adopt a comprehensive national policy on IDPs which, inter alia, identifies the agency responsible for registering, monitoring, and protecting IDPs.”135 The most recent draft included significant government, civil society, and international donor and NGO support. It directly reflects both the Guiding Principles and the Kampala Convention and seeks to provide a full framework for national responsibility toward “prevention and protection of citizens and, in some cases, non-citizens, from incidences of arbitrary and other forms of internal displacement, meet their assistance and protection needs during displacement, and ensure their rehabilitation, return, reintegration and resettlement after displacement.”136 It includes a clear statement of the rights of IDPs including in the Constitution of Nigeria and the Kampala Convention.137 However, IDMC notes that “the process lost momentum after a technical committee validated the policy in 2012. Furthermore, there have been difficulties in the identification of the focal point institution for IDPs.”138 Similarly, Beyani, following a 2016 mission, noted that “essential elements of an effective national response are absent, notably legislative and policy frameworks on internal displacement that are in accordance with international standards.” Beyani did note that the National Commission on Refugees, Migrants, and Internally Displaced Persons had “recently reactivated the process of reviewing the draft policy.”139 In addition, a draft bill is before the Nigerian National Assembly to domesticate the Kampala Convention; however, while a committee on IDPs was established in October 2015, and the bill moved through two readings by July 2016, no further progress has occurred.140 Mohammed suggests that the IDP bill and the draft IDP policy appear to have been linked together, “with the overlaps of mandates and a lack of clear leadership on which agency owns the process.”141 However, at this stage, the government’s efforts to implement systematic policies for IDPs have not been adequate. Philippines In the Philippines, a long-running insurgency against the government by the Bangsamoro Islamic Freedom Fighters has resulted in significant internal displacement on the island of Mindanao, with UNHCR estimating that the displaced population numbered 233,887 at the end of 2015.142 In 2013, the Congress of the Philippines passed an Act to protect IDPs;143 however, it was vetoed by President Benigno Aquino III, who had concerns that powers accorded to the Commission on Human Rights to determine damages incurred against IDPs violated the Commission’s powers under

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the Constitution. While the draft Act did not name the Guiding Principles, it used the Guiding Principles’ definition, and added “land conversion and any other land conflict, aggressive implementation of development projects.” It also included clear language that arbitrary internal displacement was prohibited, including acts (a) 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; (b) in situations of armed conflict, unless the security of civilians is involved; . . . (e) when used as a form of collective punishment. Finally, it made the Commission on Human Rights the institutional focal point for IDPs.145 New versions of the bill have been introduced, the most recent one in June 2016, which included explicit reference to the Guiding Principles, and the government pledged during the World Humanitarian Summit to pass the bill; however, no action has yet been taken on it.146 South Sudan Following its independence, the Republic of South Sudan initially made strong commitments to IDPs, reflecting the widespread pattern of movement from Sudan to the new country. Its 2011 transitional Constitution tasked the Council of States, the country’s upper legislative house, with monitoring “the repatriation, relief, resettlement, rehabilitation, reintegration of returnees and internally displaced persons, and reconstruction of disaster and conflict affected areas.”147 South Sudan also joined the Great Lakes Protocol in November 2012 and signed the Kampala Convention in January 2013, but has not ratified it.148 Due to the outbreak of civil war in 2013, this transitional Constitution remains in force. The civil war in South Sudan began as a political crisis after President Salva Kiir accused former Vice President Riek Marchar of attempting a coup. This caused a rupture in the Sudan People’s Liberation Army (SPLA), with Marchar leading the SPLM/A in Opposition.149 This led to violence escalating across Upper Nile, Jonglei, and Unity states, with Human Rights Watch reporting that the period between mid-December and mid-April 2014 “saw widespread acts of cruelty, including gruesome massacres of civilians and attacks on individual men, women, and children, shot because of their ethnicity in their homes, churches, hospitals, and as they fled.”150 This period saw some 1.4 million people internally displaced by the violence, including over 68,000 people who fled into UN Mission in South Sudan (UNMISS) peacekeeping bases for protection.151 While a

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peace agreement was signed in August 2015, the conflict has continued, and by December 2016, 1.9 million people were internally displaced and 1.3 million had fled the country—one quarter of the population.152 The government has done little to assist the displaced population. Following a mission to the country in November 2013, just before the civil war began in December, Beyani was critical of the failure of the government to create a national policy framework to deal with internal displacement, noting that “despite the absence of an institutionalized response, the Government of South Sudan remains accountable to prevent internal displacement, to not arbitrarily displace people, assist and protect them and support durable solutions.”153 Similarly, an IDMC report in July 2014 noted that “the capacity and willingness of government and opposition forces to protect civilians is questionable, given that both parties have committed grave abuses against them. It has largely fallen to the international community to protect and assist IDPs.”154 In February 2017, the Protection cluster noted that “violent attacks against civilians and community infrastructure by government forces continue to cause internal displacement” and that “there is no accountability and perpetrators of violence act with impunity. Human rights violations, including attacks on civilians are expected to continue.”155 Thus, while the government initially made strong commitments to IDPs, in the wake of the civil war, the government not only has not protected its IDP population, but also it has been a significant source of harm against them.

Conclusions: when does implementation fail? This chapter is about failure. It is about states which took the initial steps to introduce new policies or laws to protect and assist their own internally displaced populations but have then failed to effectively bring these documents into action. In a number of these cases, like Afghanistan and Central African Republic, failed implementation is directly linked to conflict. In these cases, governments may not be able to access populations, or may, as with Central African Republic, lack authority and the ability to provide basic services across much of the country. However, conflict alone cannot explain failed implementation—after all, as we have seen in the previous chapters, a number of states with ongoing internal conflicts have successfully implemented their own laws and policies. At the same time, there is only one case—Sudan—where the government has simultaneously introduced a comprehensive policy and has clear capacity to implement it, but where the policy has not been effectively implemented. In that case, not only have key components not been implemented, but also ongoing government activities, such as efforts to shut down IDP camps,

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simply do not reflect what the policy establishes. This chapter has shown that it is more likely that, in cases where policies or laws lack sufficient government support, they simply do not enter into force and stall out. But two other factors also appear to matter. Domestic opposition, coupled with conflict and capacity issues, can also undermine policy implementation. Commitments in peace processes can also be fair-weather processes, with the government doing little to actually implement them once peace exists as its focus moves to new issues. Afghanistan demonstrates the potency of domestic opposition in stalling out decent policies. There, the policy emerged in part due to international pressure and had significant international support. But while it was a well drafted policy, it was a top-down process, with little support at the local level—in particular, the issue of land rights was not taken seriously at the drafting stage. But policy implementation was also led by the Ministry of Refugees and Repatriation, widely recognized as lacking capacity and resources and a lack of political clout to work effectively within the very decentralized environment of Afghanistan. Thus, domestic opposition successfully blocked policy implementation. In Iraq, bureaucratic opposition and a lack of resources, coupled with a focus on return rather than wider durable solutions, has similarly stalled out what otherwise was a strong policy on paper. Commitments embedded in peace processes which then are not realized are also an important factor. In Burundi, the government introduced documents as part of the peace process which were then widely ignored, and no efforts have been made to respond to new displacements since 2015. In Guatemala, the government agreed to IDP reintegration and return, but then shifted policy away from IDPs to focus on poverty more generally before abandoning efforts completely. In Nepal, a strong commitment within the peace process followed by a clear policy has not been implemented and stalled out due to weaknesses at the Cabinet level. Similarly in South Sudan, its transitional Constitution included clear responsibilities for IDPs, but while that Constitution remains in force, the government has effectively abdicated responsibility for the IDP population to the international community. Zimbabwe’s Global Political Agreement after the 2008 elections seemed to signal a shift in the government’s position toward IDPs. And yet, following the 2013 elections, the government has effectively abandoned these efforts. Equally important are policies which are deliberately narrow. While India has a large conflict-induced IDP population, it has chosen to effectively ignore this issue and focus only on development-induced displacement. In Indonesia, while policies were introduced to respond to internal displacement in the late 1990s, the government has taken no actions to introduce

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new policies with respect to areas of conflict between the Indonesian Armed Forces and rebel actors such as the Free Papua Movement in West Papua. In Lebanon, a 1992 Law was not applied to newer displacement, and the lack of state capacity saw the government superseded by Hezbollah’s response. There is also the question of laws and policies which stall out prior to implementation. In many cases, these laws and policies are well drafted. But failures to pass them are directly linked to a lack of leadership over the process in government. In Democratic Republic of Congo, a decent draft law stalled out at the review stage due to administrative obstacles. In Nigeria, a law and a policy have similarly stalled out due to a lack of clear leadership and ownership of the process within the government. In the Philippines, multiple bills have failed to pass or been vetoed.

Notes 1 IDMC, “Afghanistan: New and Long-Term IDPs Risk Becoming Neglected as Conflict Intensifies,” 16 July 2015, www.internal-displacement.org/south-andsouth-east-asia/afghanistan/2015/afghanistan-new-and-long-term-idps-riskbecoming-neglected-as-conflict-intensifies; Matthew Willner-Reid, “IDPs in Afghanistan: A Confused National Glossary,” Refugee Survey Quarterly 35, no. 4 (2016): 86–7. 2 Government of the Transitional Islamic State of Afghanistan, “IDP Strategy for Afghanistan,” 18 July 2003, http://reliefweb.int/report/afghanistan/idpstrategy-afghanistan. 3 IDMC, “Afghanistan: Drought and Instability Slow Down IDP Return,” 25 Oct. 2004, www.internal-displacement.org/assets/library/Asia/Afghani stan/pdf/Afghanistan-overview-oct04.pdf. 4 Andrew Solomon and Chareen Stark, “Internal Displacement in Afghanistan: Complex Challenges to Government Response,” in From Responsibility to Response: Assessing National Approaches to Internal Displacement, ed. Elizabeth Ferris, Erin Mooney, and Chareen Stark (Washington, DC: Brookings Institution-LSE Project on Internal Displacement, 2011), 269. 5 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons on His Mission to Afghanistan,” A/HRC/35/27/Add.3, 12 Apr. 2017, 14. 6 Ibid., 14. 7 Brookings-Bern Project on Internal Displacement and NRC, “Realizing National Responsibility for the Protection of Internally Displaced Persons in Afghanistan: A Review of Relevant Laws, Policies, and Practices,” Nov. 2010, 16–17. 8 UNHCR, “Afghanistan: IDP,” Feb. 2009, www.unhcr.org/cgi-bin/texis/vtx/ home/opendocPDFViewer.html?docid=49ba2dd22&query=Consultative% 20Group%20for%20Returnees%20and%20IDPs. 9 OHCHR, “UN Expert Concerned about Growing Problem of Internal Displacement in Afghanistan,” 20 Aug. 2007, www.brookings.edu/projects/idp/RSGPress-Releases/20070820_afghanistan.aspx. 10 IDMC, “Challenges of IDP Protection: Research Study on the Protection of Internally Displaced Persons in Afghanistan,” 2012, 10.

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11 Nina Schrepfer and Dan Tyler, “Afghanistan Consults on an IDP Policy,” Forced Migration Review 40 (2012): 40. 12 IDMC, “IDP Laws and Policies Database: Afghanistan,” www.internaldisplacement.org/law-and-policy/country/AF. 13 The Government of the Islamic Republic of Afghanistan, “National Policy on Internally Displaced Persons,” 25 Nov. 2013; IDMC, “Hope on the Horizon! Media Guide to Afghanistan’s National Policy on Internal Displacement,” Jan. 2014, 2, 6. 14 IDMC, “Still at Risk Security of Tenure and the Forced Eviction of IDPs and Refugee Returnees in Urban Afghanistan,” Feb. 2014. 15 Bill Roggio and Alexandra Gutowski, “LWJ Map Assessment,” FDD’s Long War Journal, 26 Sept. 2017, www.longwarjournal.org/archives/2017/09/lwjmap-assessment-taliban-controls-or-contests-45-of-afghan-districts.php. 16 IDMC, “Afghanistan: New and Long-Term IDPs,” 1. 17 Solomon and Stark, “Internal Displacement in Afghanistan: Complex Challenges to Government Response,” 270. 18 IDMC, “Afghanistan: New and Long-Term IDPs,” 10. 19 IRIN, “Analysis: Afghan Government Promises Rethink on IDPs,” 20 Feb. 2014; IDMC, “Afghanistan: New and Long-Term IDPs,” 10. 20 IRIN, “New Solutions for Afghanistan’s Protracted IDPs,” 20 Feb. 2014. 21 IDMC, “Afghanistan: New and Long-Term IDPs,” 10–12. 22 Ibid., 12. 23 Willner-Reid, “IDPs in Afghanistan,” 89. 24 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons on His Mission to Afghanistan,” A/HRC/35/27/Add.3, 12 Apr. 2017, 1. 25 Ibid., 6. 26 HRW, “Emptying the Hills: Regroupment in Burundi,” June 2000, www.hrw. org/reports/2000/burundi2/. 27 CHR, “Profiles in Displacement: Forced Relocation in Burundi,” E/CN.4/2001/ 5/Add.1, 6 Mar. 2000; United Nations, “Senior Inter-Agency Network on Internal Displacement Mission to Burundi, 18–22 Dec 2000,” 23 Dec. 2000, http:// reliefweb.int/report/burundi/senior-inter-agency-network-internal-displacementmission-burundi18-22-dec-2000. 28 HRW, “Emptying the Hills”; HRW, “‘Regroupment’ Camps in Burundi Condemned,” 18 July 2000, www.hrw.org/news/2000/07/18/regroupment-campsburundi-condemned; Susan Forbes Martin and Trish Hiddleston, “Burundi: A Case of Humanitarian Neglect,” in Catching Fire: Containing Forced Migration in a Volatile World, ed. Nicholas Van Hear and Chris McDowell (New York: Lexington Books, 2006), 19. 29 “Arusha Peace and Reconciliation Agreement for Burundi-Protocol IV: Reconstruction and Development,” 28 Aug. 2000, www.brookings.edu/wp-content/ uploads/2016/07/Burundi_Arusha-Peace-and-Reconciliation-Agreement-forBurundi.pdf. 30 Government of Burundi, “Protocole Relatif a la Création D’Un Cadre Permanent de Concertation pour la Protection des Personnes Déplacées,” 7 Feb. 2001. 31 IDMC, “Burundi: Internally Displaced Burundians Should Not Be Forgotten during the Peacebuilding Process,” May 2008, www.internal-displacement. org/assets/library/Africa/Burundi/pdf/Burundi-May-2008.pdf, 89.

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32 Martin and Hiddleston, “Burundi: A Case of Humanitarian Neglect,” 26. 33 IDMC, “Burundi: Secure Tenure and Land Access Still Challenges for LongTerm IDPs,” 18 Aug. 2011. 34 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 35 IDMC, “Burundi: Guarded Optimism That Long-Term IDPs May Achieve Long-Term Solution,” 4 Mar. 2015. 36 HRW, “World Report 2017: Burundi,” www.hrw.org/world-report/2017/ country-chapters/burundi. 37 HRC, “Report of the United Nations Independent Investigation on Burundi,” A/HRC/33/37, 20 Sept. 2016, 19. 38 Africa Centre for Strategic Studies, “Refugee Flows Show Burundi Crisis Worsening,” 13 Mar. 2017, http://africacenter.org/spotlight/refugee-flowsshow-burundi-crisis-worsening/. 39 Refugees International, “Field Report: You Are Either with Us or against UsPersecution and Displacement in Burundi,” 18 Nov. 2015, www.refugeesinternational.org/reports/2015/11/17/burundi; IDMC, “‘A Recipe for Violence’: The Impact of Burundi’s Downward Spiral on Displacement,” 22 Dec. 2015, www.internal-displacement.org/blog/2015/a-recipe-for-violence-theimpact-of-burundis-downward-spiral-on-displacement. 40 IDMC, “Guatemala: Violence and Inequality Still Blocking Solutions for IDPs,” 8 Dec. 2009, 1–2. 41 Patricia Weiss Fagen, “Peace Processes and IDP Solutions,” Refugee Survey Quarterly 28, no. 1 (2009): 41. 42 IACHR, “Fifth Report on the Situation of Human Rights in Guatemala: Chapter XIV-The Human Rights of those Uprooted by Conflict,” OEA/Ser.L/V/II.111, 6 Apr. 2001, www.cidh.org/countryrep/Guate01eng/chap.14.htm; see also Cecilia Bailliet, “Preventing Internal Displacement: Conciliating Land Conflicts in Guatemala,” Refugee Survey Quarterly 19, no. 3 (2000): 192–3. 43 Fagen, “Peace Processes and IDP Solutions,” 42. 44 IDMC, “Guatemala IDP Figures Analysis,” Dec. 2014, www.internaldisplacement.org/americas/guatemala/figures-analysis. 45 International Centre for the Human Rights of Migrants (CIDEHUM), “Forced Displacement and Protection Needs Produced by New Forms of Violence and Criminality in Central America,” 2012, 18; Congressional Research Service, “Guatemala: Political, Security, and Socio-Economic Conditions and US Relations,” 7 Aug. 2014, https://fas.org/sgp/crs/row/R42580.pdf, 10. 46 CIDEHUM, “Forced Displacement and Protection Needs,” 18, 37. 47 Amnesty International, “Home Sweet Home? Honduras, Guatemala and El Salvador’s Role in a Deepening Refugee Crisis,” 14 Oct. 2016, www. amnesty.org/en/documents/amr01/4865/2016/en/, 26. 48 United States Department of State, “Country Reports on Human Rights Practices for 2016: Guatemala,” 12 Apr. 2017, www.state.gov/j/drl/rls/hrrpt/human rightsreport/index.htm?year=2016&dlid=265590. 49 CHR, “Report of the Representative of the Secretary-General on Internally Displaced Persons Profiles in Displacement: Mission to Indonesia,” E/CN.4/ 2002/95/Add.2. Feb 2002, 5; Jana Mason, “Shadow Plays: The Crisis of Refugees and Internally Displaced Persons in Indonesia,” US Committee for Refugees, Jan. 2001, 2.

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50 Marita Swain and Frederik Kok, “Indonesia: Concerted Efforts Needed to Find Solutions for Protracted IDPs,” IDMC, 11 Aug. 2015, www.internaldisplacement.org/south-and-south-east-asia/indonesia/2015/indonesia-concertedefforts-needed-to-find-solutions-for-protracted-idps. 51 Republic of Indonesia, “Law of the Republic of Indonesia Number 24 of 2007 Concerning Disaster Management,” Art 1.3, 6. 52 Swain and Kok, “Indonesia.” 53 Fitri Bintang Timur, “Flaws in the Social-Conflict Management Law,” The Jakarta Post, 18 May 2012. 54 IDMC, “Indonesia IDP Figure Analysis,” July 2015, www.internal-displacement. org/south-and-south-east-asia/indonesia/figures-analysis. 55 IDMC, “Indonesia: Durable Solutions Needed for Protracted IDPs as New Displacement Occurs in Papua,” 13 May 2014, www.internal-displacement.org/ south-and-south-east-asia/indonesia/2014/indonesia-durable-solutions-neededfor-protracted-idps-as-new-displacement-occurs-in-papua-/; see also International Coalition for Papua, “Human Rights in West Papua 2015,” www.humanrightspapua.org/images/docs/HumanRightsPapua2015-ICP.pdf. 56 United Nations Human Rights Committee, “Concluding Observations on the Initial Report of Indonesia,” CCPR/C/IDN/CO/1, 21 Aug. 2013, 5. 57 IDMC, “Iraq: Internal Displacement in Brief,” 31 Dec. 2013, www.internaldisplacement.org/middle-east-and-north-africa/iraq/summary; HRC, “Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, Addendum: Visit to Iraq,” A/HRC/16/ 43/Add.1, 16 Feb. 2011, 7. 58 Government of Iraq Ministry of Displacement and Migration, “National Policy on Displacement,” July 2008, 5–6; HRC, “Report of the Representative,” 2009, 6. 59 Government of Iraq Ministry of Displacement and Migration, “National Policy on Displacement,” 5. 60 HRC, “Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, Addendum: Visit to Iraq,” A/HRC/16/43/Add.1, 16 Feb. 2011, 9. 61 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons on His Mission to Iraq,” A/HRC/32/35/Add.1, 5 Apr. 2016, 5. 62 Kälin, “Addendum: Visit to Iraq,” 2011, 6. 63 IDMC, “Iraq: Response Still Centered on Return Despite Increasing IDP Demands for Local Integration,” 23 Sept. 2011, 10. 64 HRC, “Report of the Special Rapporteur,” 7. 65 IDMC, “Iraq: IDPs Caught between a Rock and a Hard Place as Displacement Crisis Deepens,” 30 June 2015, 11. 66 HRC, “Report of the Special Rapporteur,” 18. 67 IDMC, “Lebanon: No New Displacement But Causes of Past Conflicts Unresolved,” 30 Dec. 2010, www.internal-displacement.org/assets/library/MiddleEast/Lebanon/pdf/201012-me-lebanon-overview-en.pdf, 3; USCRI, “World Refugee Survey 1999-Lebanon,” www.refworld.org/docid/3ae6a8cfc.html. 68 Cited in Reinoud Leenders, Spoils of Truce: Corruption and State-Building in Postwar Lebanon (Ithaca, NY: Cornell University Press, 2012), 117. 69 Ibid. 70 USCRI, “World Refugee Survey 1999-Lebanon,” www.refworld.org/docid/ 3ae6a8cfc.html.

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71 IDMC, “Lebanon: No New Displacement But Causes of Past Conflicts Unresolved,” 30 Dec. 2010, www.internal-displacement.org/assets/library/MiddleEast/Lebanon/pdf/201012-me-lebanon-overview-en.pdf, 5–6. 72 Ibid., 6. 73 Christine Sylva Hamieh and Roger Mac Ginty, “A Very Political Reconstruction: Governance and Reconstruction in Lebanon after the 2006 War,” Disasters 34, no. s1 (2010): S106. 74 Republic of the Sudan Ministry of Humanitarian Affairs, “The National Policy for Internally Displaced Persons,” 2009, www.internal-displacement.org/static_ content/law-and-policy/sudan/Sudan_IDPPolicy.pdf, Art 2(d); 5(a)(21). 75 Ibid., Preamble, Art. 5(b)(4). 76 Ibid., Art. 5(a)(1–11). 77 Ibid., Art. 5(a)(13). 78 Ibid., Art. 6(a-b). 79 Ferris, Mooney, and Stark, “From Responsibility to Response,” 35. 80 UNSC, “Report of the Secretary-General on the African Union-United Nations Hybrid Operation in Darfur,” 16 Nov. 2009, S/2009/592, 4, 8. 81 Republic of Sudan, “Darfur: Towards a New Strategy for Achieving Comprehensive Peace, Security and Development,” 2010. 82 UNHCR, “Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report-Universal Periodic Review: Sudan,” Nov. 2010, www.refworld.org/ docid/4ccfe3502.html, 8. 83 HRC, “Report of the Independent Expert on the Human Rights of Internally Displaced Persons, Mr. Chaloka Beyani: Mission to Sudan,” A/HRC/23/44/ Add.2, 27 May 2013, 8. 84 IDMC, “A Worsening Displacement Crisis in Need of a Comprehensive Response,” 9 July 2013. 85 IDMC, “Sudan: Other Crises Distract Attention from Tremendous Needs of IDPs,” 9 July 2014. 86 Nuba Reports, “Darfur Camps for Displaced to Close Amid Spike in Conflict, Displacement,” 2 Feb. 2016, https://nubareports.org/darfur-camps-for-displacedto-close-amid-spike-in-conflict-displacement/; Eric Reeves, “Has the Dismantling of Darfur’s IDP Camps Begun,” 18 Apr. 2017, http://sudanreeves.org/ 2017/04/18/appendix-a-has-the-dismantling-of-darfurs-idp-camps-begun/; Sudan Tribune, “Darfur Regional Authority Officially Dissolved,” 14 June 2016, www.sudantribune.com/spip.php?article59283. 87 Rhoda E. Howard-Hassmann, “Mugabe’s Zimbabwe, 2000–2009: Massive Human Rights Violations and the Failure to Protect,” Human Rights Quarterly 32, no. 4 (2010); HRW, “Universal Periodic Review of Zimbabwe: HRW’s Submission to the Human Rights Council,” Mar. 2011, www.hrw.org/news/ 2011/03/29/universal-periodic-review-zimbabwe. 88 IDMC, “A Review of the Legal Framework in Zimbabwe Relating to the Protection of IDPs,” Dec. 2014, 9. 89 Jeff Crisp and Esther Kiragu, Refugee Protection and International Migration: A Review of UNHCRs Role in Malawi, Mozambique and South Africa (Geneva: UNHCR, 2010); Tara Polzer, “Responding to Zimbabwean Migration in South Africa: Evaluating Options,” South African Journal of International Affairs 15, no. 1 (2008).

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90 Global Political Agreement (Government of National Unity), 15 Sept. 2008, Art 16(4)(c), 12. 91 “Memorandum of Understanding between the Zimbabwe African National Union (Patriotic Front) and the Two Movement for Democratic Change Formations,” 21 July 2008, http://pmg-assets.s3-website-eu-west-1.amazonaws. com/docs/080721mou.pdf. 92 IDMC, “Unknown Numbers of IDPs Still Need Humanitarian Assistance as Well as Support for Long Term Durable Solutions,” 20 Dec. 2011, http:// reliefweb.int/sites/reliefweb.int/files/resources/fullreport_174.pdf, 6–7; IDMC, “Zimbabwe: Official Acknowledgement of Displacement Yet to Be Translated into Strategies for Durable Solutions,” 21 May 2010, http://reliefweb.int/sites/ reliefweb.int/files/resources/9A22CCC3B811433A8525773E005DA99E-Full_ Report.pdf, 7. 93 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 94 HRW, “False Dawn: The Zimbabwe Power-Sharing Government’s Failure to Deliver Human Rights Improvements,” 31 Aug. 2009, www.hrw.org/report/ 2009/08/31/false-dawn/zimbabwe-power-sharing-governments-failure-deliverhuman-rights. 95 IDMC, “A Review of the Legal Framework,” 42. 96 Ibid., 13. 97 Laura Perez, “Internal Displacement in the Central African Republic,” Forced Migration Review Special Issue (Dec 2008): 31–3. 98 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). 99 International Crisis Group, “Central African Republic: The Roots of Violence,” 21 Sept. 2015; International Crisis Group, “Commentary: Four Priorities for the New President,” 10 May 2016. 100 United Nations, “The International Commission of Inquiry on the Central African Republic: Final Report,” S/2014/928, 22 Dec. 2014, 7, 19; see also Amnesty International, “Ethnic Cleansing and Sectarian Killings in the Central African Republic,” Feb. 2014. 101 IDMC, “Laws and Policies Database: Central African Republic,” www.internaldisplacement.org/law-and-policy/country/CF. 102 République Centrafricaine, “Feuille de Route: Pour l’élaboration de la legislation nationale sur le déplacement interne,” 4 Aug. 2014, www.internal-displacement. org/static_content/law-and-policy/car/RCA_Feuillederoute_04082014.pdf. 103 Global Protection Cluster, “Central African Republic GP20 Concept Note,” 2018, www.globalprotectioncluster.org/en/news-and-events/gp20-activitiesand-initiatives/law-and-policy/central-african-republic-gp20-concept-note.html. 104 IDMC, “Central African Republic: IDPs Face Significant Challenges as Instability and Political Transition Continue,” 26 May 2015, 8. 105 United Nations Financial Tracking Service, “Central African Republic 2016: Humanitarian Response Plan,” https://fts.unocha.org/appeals/517/summary, accessed 19 Apr. 2017. 106 IDMC, “DR Congo Country Information 2016,” www.internal-displacement. org/database/country/?iso3=COD.

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107 Stacey White, “Now What? The International Response to Internal Displacement in the Democratic Republic of the Congo,” Brookings Institution (2014): 4, 9. 108 Ibid., 10. 109 Ferris, Mooney, and Stark, “From Responsibility to Response,” 69. 110 HRC, “Mission to the Democratic Republic of the Congo,” A/HRC/8/6/Add.3, 16 May 2008, 20–1. 111 Melanie Wissin, “As DRC Ratifies the Kampala Convention, IDMC Asks: What Difference Will It Make?,” IDMC Blog Post, 24 July 2014, www.internaldisplacement.org/blog/2014/as-drc-ratifies-the-kampala-conventionidmc-askswhat-difference-will-it-make. 112 Democratic Republic of Congo, “Report to the African Commission on Human and Peoples’ Rights on the Implementation of the African Charter on Human and People’s Rights: From 2005 to 2015,” 5 Oct. 2017, 11. 113 IRIN News, “Much Aid, Little Long-Term Impact in DRC,” 27 Jan. 2015, www.refworld.org/docid/54cb5ea94.html. 114 IDMC, “Laws and Policies Database: Democratic Republic of the Congo,” www.internal-displacement.org/law-and-policy/country/CD; Global Protection Cluster, “Democratic Republic of Congo GP20 Concept Note,” 2018, www. globalprotectioncluster.org/en/news-and-events/gp20-activities-and-initiatives/ law-and-policy/democratic-republic-of-congo-gp20-concept-note.html; White, “Now What? The International Response to Internal Displacement in the Democratic Republic of the Congo,” 11. 115 IDMC, “India: This Is Our Land: Ethnic Violence and Internal Displacement in North-East India,” Nov. 2011, 25. 116 Sonal Singh, Sharan Prakash Sharma, Edward Mills, Krishna C. Poudel, and Masamine Jimba, “Conflict Induced Internal Displacement in Nepal,” Medicine, Conflict and Survival 23, no. 2 (2007): 105–6. 117 OCHA, “Nepal 2010: Humanitarian Transition Appeal,” 2010, 3. 118 Walter Kälin, “Internal Displacement in Peace Processes” (Washington, DC: The Brookings Bern Project on Internal Displacement, 25 Mar. 2010), https://www.brookings.edu/on-the-record/internal-displacement-in-peaceprocesses/. 119 Yagya P. Adhikari and Uma Joshi, Rapid Assessment of Conflict Induced Internally Displaced Persons (IDPs) for the Return, Resettlement and Reintegration (Kathmandu: National Human Rights Commission, Nepal, 2008), 30. 120 Human Rights without Frontiers International, Internally Displaced Persons in Nepal: The Forgotten Victims of the Conflict (Brussels: Human Rights Without Frontiers International, 2005), 10. 121 Khalid Koser, Addressing Internal Displacement in Peace Processes, Peace Agreements, and Peace-Building (Washington, DC: Brookings-Bern Project on Internal Displacement, 2007), 28. 122 Renu Kshetry, “Displaced Choose Urban Homelessness over Rural Insecurity,” Inter Press Service, 9 Apr. 2009; Ferris, Mooney, and Stark, “From Responsibility to Response,” 79; Suresh Pandit, National Policy on Internally Displaced Person[S], 2063: Implementation for Rehabilitation, Resettlement and Reintegration [of] Internally Displaced Persons in Nepal: I/NGOs Perspective: Initiation, Present Situation and Way Forward (Kathmandu: Norwegian Refugee Council, 2008), 6. 123 E-mail correspondence with UN official, Kathmandu, Nepal, 16 Mar. 2012.

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124 IRIN, “Nepal: Stalled Government Policy Leaves IDPs in Limbo,” 4 Mar. 2010; IDMC, “Nepal: Failed Implementation of IDP Policy Leaves Many Unassisted,” 2010. 125 Nepal IDP Working Group, “Distant from Durable Solutions: Conflict Induced Internal Displacement in Nepal,” 2009, 34. 126 IDMC, “Nepal,” 15. 127 NRC, “NRC Nepal-Official Closure,” 24 Jan. 2009, https://reliefweb.int/ report/nepal/nrc-nepal-official-closure. 128 Mary Wyckoff and Hemang Sharma, Trekking in Search of IDPs and Other Lessons from ICLA Nepal: Evaluation Report (Oslo: Norwegian Refugee Council, 2009), 45–6. 129 UN, “Peace-Building Strategy for Nepal, 2011–12,” 2011, www.un.org.np/sites/ default/files/2011-08-29-UN-Peace-Building%20Strategy-%20Final.pdf, 9. 130 E-mail correspondence with UN official, Kathmandu, Nepal, 16 Mar 2012. 131 IDMC, “Nigeria: Multiple Displacement Crises Overshadowed by Boko Haram,” 9 Dec. 2014, www.internal-displacement.org/assets/library/Africa/ Nigeria/pdf/201412-af-nigeria-overview-en.pdf, 4. 132 HRW, “Nigeria: Officials Abusing Displaced Women, Girls,” 31 Oct. 2016, www.hrw.org/news/2016/10/31/nigeria-officials-abusing-displaced-womengirls. 133 Federal Republic of Nigeria, “Nigeria’s 5th Periodic Country Report 2011– 2014 on the Implementation of the African Charter on Human and People’s Rights in Nigeria,” June 2014, 111. 134 Romola Adeola, “Kampala Convention and Protection of IDPs in Nigeria,” Punch, 28 Apr. 2016, http://punchng.com/kampala-convention-protectionidps-nigeria/. 135 UNHCR, “Submission by the United Nations High Commissioner for Refugees: Universal Periodic Review-Nigeria,” Mar 2013, 5. 136 Federal Republic of Nigeria, “National Policy on Internally Displaced Persons (IDPs) in Nigeria: Draft,” Aug. 2012, 16, 19. 137 Ibid., 24–36. 138 IDMC, “IDP Laws and Policies Database: Nigeria,” www.internal-displacement. org/law-and-policy/country/NG. 139 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons on His Mission to Nigeria,” A/HRC/35/27/Add.1, 12 Apr. 2017, 7. 140 Fatima Kyari Mohammed, The Causes and Consequences of International Displacement in Nigeria and Related Governance Challenges (Berlin: German Institute for International and Security Affairs, 2017), 17; Peoples Daily, “NASS Ready to Domesticate Kampala Convention on IDPs, Dogara Assures,” 22 Mar. 2017, www.peoplesdailyng.com/nass-ready-to-domesticate-kampalaconvention-on-idps-dogara-assures/. 141 Ibid., 18. 142 UNHCR and the UN Protection Cluster, “Philippines: Displacement Dashboard, Mindanao, Forced Displacement Annual Report, 2015,” http://reliefweb.int/ report/philippines/philippines-displacement-dashboard-mindanao-forceddisplacement-annual-report. 143 Republic of the Philippines, Congress of the Philippines, “An Act Protecting the Rights of Internally Displaced Persons, Providing Penalties for Violations Thereof and for Other Purposes,” 5 Feb. 2013.

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144 IDMC, “A Bend in the Road Is Not the End of the Road: The Veto of the IDP Act in the Philippines,” 13 June 2013, www.internal-displacement.org/assets/ library/Asia/Philippines/pdf/IDMC-NRC-public-statement-Philippines-13june-2013.pdf; Llanesca Panti, “Bill on Displaced Persons Gathers Dust in Congress,” The Manila Times, 14 Mar. 2015, www.manilatimes.net/bill-ondisplaced-persons-gathers-dust-in-congress/169395/, accessed 14 May 2015. 145 Republic of the Philippines, “An Act,” Sec 6. 146 OCHA, “Philippines Humanitarian Bulletin,” Issue 10, 31 Oct. 2016, http:// ochaimphil.github.io/Humanitarian-Bulletin/HumBulletinOct2016.html. 147 Republic of South Sudan, “The Transitional Constitution of the Republic of South Sudan, 2011,” Art. 59(d). 148 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention); International Conference on the Great Lakes Region, “The Pact on Security, Stability and Development for the Great Lakes Region,” Amended Nov. 2012, www.icglr.org/images/Pact% 20ICGLR%20Amended%2020122.pdf, 2. 149 ICG, “South Sudan: A Civil War by Any Other Name,” 10 Apr. 2014, https:// d2071andvip0wj.cloudfront.net/south-sudan-a-civil-war-by-any-other-name. pdf. 150 HRW, “Ending the Era of Injustice: Advancing Prosecutions for Serious Crimes Committed in South Sudan’s New War,” Dec. 2014, www.hrw.org/ sites/default/files/reports/southsudan1214_ForUpload_0.pdf, 1. 151 OCHA, “South Sudan Crisis: Situation Report No. 42,” 26 June 2014, http:// reliefweb.int/sites/reliefweb.int/files/resources/f5583f12-4be4-4e6c-965f1389424be9ea.pdf; Mark Malan and Charles T. Hunt, Between a Rock and a Hard Place: The UN and the Protection of Civilians in South Sudan (Pretoria: Institute for Security Studies, 2014). 152 OCHA South Sudan, “2017 Humanitarian Needs Overview,” Dec. 2016, 1–2. 153 HRC, “Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons: Mission to South Sudan,” A/HRC/26/33/Add.3, 12 May 2014, 14. 154 IDMC, “South Sudan: Greater Humanitarian and Development Efforts Needed to Meet IDPs’ Growing Needs,” 9 July 2014, www.internal-displacement.org/ sub-saharan-africa/south-sudan/2014/south-sudan-greater-humanitarian-anddevelopment-efforts-needed-to-meet-idps-growing-needs. 155 Protection Cluster South Sudan, “Protection Trends: South Sudan October December 2016,” Feb. 2017, www.humanitarianresponse.info/system/files/doc uments/files/south_sudan_protection_trends_paper_october_-_december_ 2016_09022017.pdf, 1–2.

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• • •

When will reality meet rhetoric for the internally displaced?

The domestic implementation record How we can improve domestic implementation Conclusions: building a better IDP regime

Today, the internally displaced are widely recognized. Their legal rights are recognized in the soft law Guiding Principles, which celebrate their 20th anniversary this year, and in regional instruments including the Kampala Convention and the Great Lakes Protocol. They are recognized in ongoing resolutions within the United Nations, in the General Assembly, Security Council, and Human Rights Council. Their need for assistance and protection is a key component of the UN’s cluster approach but is also a component of the UN’s Protection of Civilians Agenda for peacekeeping. And, at the domestic level, we now have 40 states with laws or policies designed to protect and assist them. These efforts at the international, regional, and domestic levels demonstrate that the IDP issue is more than just a passing fancy; it has been recognized as a critical international problem. States and other international actors now have shared understandings around the IDP issue, marked by international norms which have developed since the 1970s. These norms, while acknowledging the primary responsibility of the state to protect and assist their own populations, simultaneously recognize an international responsibility to provide IDPs with assistance and protection. Consequently, the IDP issue is not only an international problem, but also has helped to redefine how state sovereignty is understood at the international level. And yet, these rhetorical commitments do not match the reality on the ground for many IDPs. UN systems remain cumbersome, with no single agency devoted to their protection and assistance. Instead, approaches— whether collaborative or cluster based—work to a degree but continue to suffer from problems of leadership, coordination, and resourcing. Within the cluster approach itself, IDPs are just one category; frequently and

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easily forgotten amid wider emergencies. Similarly in peacekeeping, while IDPs are a core theme of the Protection of Civilians agenda, weaknesses on the ground continue to bedevil these efforts. State commitments, too, remain an issue. While we have 40 states with policies and laws, the record on these remain mixed not only in terms of how (and even whether) they reflect the Guiding Principles, but also in how they are or are not being implemented. In only 12 of those states have these policies and laws been implemented in a consistent manner, and even in those cases, there are issues of alignment with international standards. There have been steps forward. The IDP issue has been recognized within the Sustainable Development Goals and at the World Humanitarian Summit, marked by a global commitment to halve their numbers by 2030. But how can we get there from here? In this concluding chapter, I would like to reflect on two issues. I begin by discussing what the record tells us of these issues and how we can work to improve the domestic implementation process for IDP laws and policies. At the same time, we also need to consider what the IDP regime is, today, and where it is going in the future.

The domestic implementation record The record I identify is stark: while 40 states have introduced IDP policies and laws, in only 12 of those states have these policies and laws been implemented in a consistent manner, and even in those cases, there are issues of alignment with international standards. Further, there is a clear disconnect between international efforts and these domestic policies and laws—while creating them is a core objective of UNHCR and other UN-based agencies, too often there is a lack of follow-through, or even engagement with governments around them. Of the 33 instruments supported by international actors, only 13 have been robustly implemented, while 13 have faced significant implementation issues and seven have not been implemented at all. There are two problems here: the first is how closely these laws and policies align with the Guiding Principles; the second is how we can support more effective implementation. As I noted in Chapter 6 (and in the Annex Table beginning on page 234), the good news is that many of these laws and policies do reflect these two latter norms, with 46 laws and policies out of the 69 examined including an explicit provision for international humanitarian assistance, 41 noting explicitly that IDPs are protected by international law, and 41 noting that they are also protected by domestic law. However, there are two areas where these laws and policies have problems: in their alignment with the Guiding Principles’ IDP definition, and in their treatment of durable solutions.

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Limited or non-existent IDP definitions remain a problem. Only 30 of these laws and policies explicitly mentioned the Guiding Principles, and only 19 explicitly endorsed its definition. There are three ways in which these definitions tend to be narrower than that of the Principles. The first is to simply not clearly define them or define them in a limited way. Thus, the Kyrgyz government’s national policy notes that it applies only to citizens whose homes were destroyed in June 2010 in two areas of the country. In Mexico, in the national General Law on Victims, IDPs are simply included alongside other victims of violence, though state-level laws are more closely linked to the Principles. Russia’s 1995 Forced Migrants law introduces a range of geographic limitations and limits the status to five years with little likelihood of gaining an extension. The second is that definitions do not include the range of forms of displacement included within the Guiding Principles. Thus, Armenia’s 1998 Law provided for a limited definition of IDPs which covered only natural and human-made disasters and excluded displacement due to conflict, human rights violations, and generalized violence. India’s national policy includes only development related displacement, and the country as a whole lacks a systematic response to conflict-induced displacement. The third is that governments introduce a temporal or geographic limitation to the definition. Kosovo has adopted the Principles’ definition, but applies it only to people displaced between January 1998 and the end of March 2004. Bosnia’s 1999 law covered only citizens who had fled after April 1991 for reasons similar to the Refugee Convention’s nexus clause. Ukraine’s first IDP resolution in 2014 required IDPs to be citizens and permanent residents who had come from temporarily occupied territory. While a series of laws progressively expanded the definition, the registration process remains discriminatory and restrictive. Indonesia introduced a strong policy framework in 2002, but following widespread returns, it was discontinued in 2004. Newer laws there tend to not clearly define internal displacement and ignore displacement in West Papua. This is an area where progress is possible. International assistance does lead to significant improvements in how policies and laws define IDPs. Of the 30 policies and laws which mention the Guiding Principles, 18 were drafted with international support; of the 18 which use the Guiding Principles’ definition, 15 were drafted with such support. The other issue is that while many laws and policies have some focus on durable solutions, they have a tendency to prioritize returns over other forms of solutions. To give a few examples, while Angola was the first country to bring the Guiding Principles into domestic law, in practice, there was widespread forced return of IDPs following the end of the war in 2002 and little support provided on a long-term basis for returnees.

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While Kosovo also adopted strategies aligned with the Guiding Principles, it, too, focused on returns, a standard started by the UN Mission. Liberia’s policy similarly focused on returns, and provided return assistance only to IDPs who had been registered in camps by the WFP for food distribution purposes. Iraq’s national policy is return focused even though many IDPs have expressed preferences to resettle or integrate into their host communities. Not only did the Armenian government prioritize returns over other forms of solutions, but also they have not undertaken a new survey since 2004, with the result that no one knows how many IDPs may remain. Turkey’s national IDP strategy prioritizes returns, though it does allow for assistance and support for integration into new areas. And Georgia only slowly shifted away from prioritizing IDP returns, fully implementing its 2007 State Strategy only after the 2008 Russo-Georgian War ended the likelihood of significant IDP returns. Issues over property rights can also lead return and other durable solution processes to stall out. In Bosnia, for example, there was a significant international focus on IDP returns; however, there was lack of funding for reconstruction, court rulings significantly increased the costs for IDPs to recover property, and minority returnees frequently faced discrimination and reprisals. Afghanistan’s national policy is effectively defunct due to land rights issues at the local level. In some cases, international support has made up for weaknesses in these instruments. In Kyrgyzstan, while the government adopted a weak policy which lacked a clear definition, this was balanced by the international response which ensured almost all IDPs were able to return and that most homes had been rebuilt within two years. Yet, here, this effort was aided the brief nature of the conflict and the willingness of the IDPs to return home. In Timor-Leste, while the cluster approach was not activated until 2009, three years after the 2006 violence which triggered large-scale displacement, it provided the government with key capacity and financial support to implement its national recovery program. But international support cannot always make up for a lack of government capacity. Central African Republic, for example, has sought to create a strong national law, but its efforts have been stymied by a lack of capacity and authority. Even with declaring that situation a level three emergency in 2013, it remains underfunded.

How we can improve domestic implementation How, then, can we improve rates of success implementation of these policies? There are three clear steps. First, timing can be critical. Successful laws and policies tend to be introduced for two reasons: early response and peace agreements. Not surprisingly, a number of laws and policies

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are introduced within two years of the initial onset of internal displacement. This reflects governments which recognize the need for a response and prioritize clear policy for guidance. But it also recognizes a high-level of attention given to the crisis at both domestic and international levels. For example, in Croatia, the government had created an office to provide assistance to IDPs in 1991, the same year its war of independence began, and within two years had created a clear legislative framework. Russia’s federal law on forced migrants, while problematic, was introduced within a year of the start of the First Chechen War. In Ukraine, the government’s first efforts occurred within months of the outbreak of conflict, and it has continued to amend its laws and regulations following domestic and international concerns. Like with Ukraine, policies can also be introduced to acknowledged failures in the initial response efforts. Thus, Kenya’s government drafted a new policy in 2010 in response to inadequate and uncoordinated responses to the post-election violence in 2007 and 2008; while this policy did not end up being approved, the government introduced new legislation in 2012 to ensure national-level coordination. Peace agreements also can lead to successful implementation, but here the picture can be more complex. Liberia committed to its National Community Resettlement and Reintegration Strategy in 2002, the year after the Accra Comprehensive Peace Agreement was signed, but it was successful because the end of the war triggered large-scale supported and spontaneous returns, with the vast majority of IDPs having returned by 2006. Similarly, Sierra Leone’s resettlement strategy war introduced in October 2001, three months before fighting in its civil war would end but following a series of agreements between the government and rebels. There, too, a high rate of returns meant its official program was completed within a year through a combination of supported and spontaneous returns. Without fast returns, however, commitments in peace agreements can languish or be ignored as governments shift to new priorities. In Angola following the 2002 peace agreement, new implementing regulations were quickly introduced to ensure implementation of its 2001 Norms for the Resettlement of Internally Displaced Persons, a process hailed by international actors. The government demonstrated little commitment to its own policies, but large-scale returns were able to occur in spite of it. Similarly, Burundi’s Arusha Accords explicitly committed the government to encourage IDP return, resettlement, and reintegration, but these commitments were widely ignored over the following years except for the encouragement of some return efforts. In Guatemala, an agreement to resettle those displaced by the civil war, signed as part of the wider peace process, gradually ran into difficulties as the government moved away from IDP-specific processes to target poor populations as a whole. In South Sudan, a commitment to

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durable solutions for IDPs in the transitional Constitution, which remains in force, has been all but ignored, while in Zimbabwe, a similar commitment in the 2008 Global Political Agreement has also been ignored. The second issue reflects the need to vary how international support for these efforts are provided. First, those states with strong policies and laws need to be applauded, but also need to receive international support and commitments to ensure that these policies and laws are fully implemented. When the policies and laws are weak, states need to be supported to amend them. States which have not yet adopted laws and policies—still a large number—need to be encouraged to do so. This requires direct financial support to governments to assist them and, importantly, to create their own capacity, rather than having international organizations simply parachute into government, draft policies, and then leave. It also requires building government capacity at the national and local levels. This needs to include international efforts to identify and support lead ministries involved in the roll out of these laws and policies. It also means ensuring that government officials receive training on how these instruments work. In addition, successful implementation is frequently marked by independent domestic institutions that can support the process and serve as accountability checks through monitoring, providing independent information and, where possible, seeking to ensure the government follows the outlined process. We see many examples of these institutions including the courts and national human rights institutions, but also national and local NGOs and other civil society organizations. With respect to the role of the Courts, Colombia’s Constitutional Court has played a critical role in ensuring that the government amend legislation and improve data gathering. Similarly in Georgia, its Constitutional Court pushed the government to amend legislation to include all people who had been displaced by armed conflict as IDPs, not just those in occupied territories. Demonstrating also the importance of civil society, this action was begun by the Georgian Young Lawyers’ Association, and the ensuing legislation has been monitored by Georgia’s Public Defender. In the Philippines, local civil society actors continue to push for IDP legislation with support from politicians in Congress. International support for the implementation process cannot just end with the government, but also needs to include these other actors. The role of elections also matter. As I noted in Chapter 6, Sri Lanka’s response improved significantly due to the change in government following its 2015 elections. In Yemen, the election of Abdrabbuh Mansur Hadi as President in 2012 saw his office commit to a strong national policy in 2013. Linkages with other regional and international processes can help support these processes. In Croatia, for example, laws and policies were deliberately

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implemented in a discriminatory manner toward displaced Serbs, a problem that was resolved due to EU pressure through Croatia’s accession process. In Uganda, policy implementation efforts sped up considerably after the government was directly called out by the UN Security Council to renew its commitment. But, once again, these linkages may not be enough on their own. A number of governments in Africa have also made commitments to national-level laws and policies as a part of either the Great Lakes or Kampala processes, but in several cases including DRC, these remain in draft form. Finally, there need to be clear accountability and enforcement mechanisms at the regional and international levels to respond to governments that are unable or unwilling to provide their internally displaced populations with assistance and protection. Informal monitoring capacity around IDP issues has grown substantially, with both a dedicated IDP-focused NGO, the IDMC, and increasing coverage by international human rightsfocused organizations including Human Rights Watch and Amnesty International, and conflict-oriented organizations like the International Crisis Group. Even the US State Department, in its annual human rights reporting mechanism, has begun to cover state responses to IDP situations. This means that we have more information available around specific IDP situations than ever before. Chapters 6 through 8 of this book would have not been possible without this information. But where do these reports go? It is one thing for UN Country Teams and other actors to raise these issues with governments to prompt change. But in other cases, where governments are unwilling to respond, the international community needs to view IDPs as rights-holders, but also hold governments as well as other armed non-state actors accountable for rights violations directed against civilians who are then internally displaced or against those who have already been displaced. IDPs, as I have noted, sit within the international humanitarian protection regime complex with the consequence that norms around humanitarianism have been the primary and deeper driver of the international response. A more fruitful linkage, however, may be with another global issue which is focused directly on what occurs within states, that of human rights. With a clear linkage between IDP issues and human rights, we can see two new potential mechanisms to drive the international response. The first is in the most extreme cases of internal displacement, where the actions—whether directly or indirectly—which have caused displacement constitute mass atrocity crimes. In such cases, we do have two forms of response that have developed over the past two decades. The Responsibility to Protect (R2P) doctrine applies in situations of forced transfers within states, as well as to the

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wider set of crimes against humanity, war crimes, ethnic cleansing, and genocide. The R2P doctrine provides the international community with a range of measures it can take in such circumstances. At the extreme, this includes military intervention under Pillar 3, but it also includes sanctions, investigatory powers, and assistance. Such actions under the R2P require action by the UN Security Council, action which may not be forthcoming given the veto power when wielded by states—particularly China and Russia—who seek to protect their allies at the expense of human rights. At the same time, even in the most problematic situations, we have seen some steps taken. As I argued in Chapter 5 in the case of Syria, while efforts by the Council to deal directly with that conflict were vetoed, the Council did amend requirements around humanitarian assistance. This allowed it to be delivered by UN agencies with only the notification, rather than the consent, of the Syrian authorities. And even rebukes by the Council can see states modify their behavior, as Uganda did following its failure to implement its national IDP policy being raised within a Council debate. Thus, simply getting IDP situations onto the Council’s agenda can lead to positive change for the displaced. Similarly, the International Criminal Court can try individual perpetrators of such abuses either through a state referral or through a referral by the UN Security Council, as we have seen in the case of Darfur. The second mechanism—less developed—is to treat IDP rights violations as human rights violations, and thereby raise them in a more concrete and systematic manner. In reaction to its failed response in Sri Lanka, the UN has introduced the Human Rights Up Front Initiative, designed to strengthen the UN’s response to problems with serious human rights consequences across the UN’s three pillars of peace and security, development, and human rights. It argues for a cultural and operation change within the UN, including improved early warning and response.2 And yet, while IDPs directly experience the consequences of serious human rights consequences, there has—as of yet—been no effort to link IDP issues into the Human Rights Up Front agenda. The UN Human Rights Council’s Universal Periodic Review mechanism3 is another way of linking IDP rights violations with an accountability mechanism. Under it, all UN members are subject to review every four years. It allows for submissions from both non-governmental organizations and from national human rights institutions, and the OHCHR produces a summary report for each state under review. Other states have the opportunity to both participate and make recommendations, which are then tracked in the next review cycle. A few states have begun to use this process to make recommendations. As part of Angola’s first cycle review, Australia recommended that it

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“immediately cease, in accordance with the Guiding Principles on Internal Displacement 1998, all forms of forced displacement,” a recommendation the Angolan government accepted but failed to implement. In its second cycle review, Australia repeated the recommendation: “Immediately cease all forms of forced displacement, in accordance with the applicable international humanitarian and human rights law and the Guiding Principles on Internal Displacement (1998).” Colombia similarly accepted recommendations from Austria, Canada, Italy, Ireland, and Portugal that it prosecute forced displacements and take action to stop their occurrences. Other recommendations have focused specifically on the adoption of the Guiding Principles. New Zealand, for example, recommended to Myanmar in its first cycle that it “implement and enforce the right not to be arbitrarily displaced and the Guiding Principles on Internal Displacement.” However, so far only eight states have made similar recommendations.4 The Universal Periodic Review is certainly not a panacea for implementation issues with national-level laws and policies—it is both non-binding and, given its four-and-a-half-year cycle, slow. But it does provide a clear mechanism for states to both monitor these issues and to signal their dissatisfaction.

Conclusions: building a better IDP regime Improving domestic-level implementation through improved international support and accountability mechanisms is one way in which we can not only better assist and protect IDPs, but also improve the resonance of the norms underpinning the IDP regime. Therefore, this is also a story of norms and regimes. As I argued in the first half of the book, the Guiding Principles have played a key role in crystallizing norms around IDP protection and in the creation of an informal IDP regime. While IDPs were first recognized in the Second World War, it was not until the 1970s that a clear norm emerged which required some form of international action toward them, and that norm reflected purely the idea that IDPs required assistance that could be provided by international actors. It was this norm that underpinned UNHCR’s assistance efforts toward IDPs, supported by the UN General Assembly, the Secretary-General, and the state themselves. By the early 1990s, this was no longer a controversial norm. With the introduction of the Guiding Principles as a marker, but also within the debates that occurred across the 1990s, we see this norm expanded as well as the creation of two new norms. The first is that we see the creation of the first clear IDP definition, one that, while not anchored in international law, is now widely accepted at the international level and reflected routinely in the resolutions of the UN General Assembly and other bodies. With this

232

When will reality meet rhetoric?

232

definition, IDPs are marked as a distinct group, one that, while remaining principally the responsibility of their own state, also face dilemmas which can be resolved only through international action. The second norm establishes that IDPs are entitled to the same legal protections as other citizens and should not be discriminated against. The third norm modified prior understandings around assistance by identifying a range of diffuse and direct responsibilities for both protection and humanitarian assistance, direct responsibilities held by national authorities, and diffuse responsibilities held by the international community including humanitarian actors. As the keystone of the IDP protection regime, the Guiding Principles are different from an international convention in three critical ways. The first is that because they are soft law they are nonbinding on states. The second, following from this, is that they have been subject to an implementation process as a set of principled norms. Thus, while key understandings— such as how we define IDPs—have been clarified at the international level, these same understandings remain subject to interpretation and contestation at the domestic level. Thus, within the domestic-level laws and policies examined, states have much more frequently acknowledge other bodies of international law but also their own domestic laws as applying to IDPs than the Guiding Principles. This leads to the third issue: the form of behavior the Guiding Principles require. They create a direct responsibility for the state concerned; defined in Principle 3 as the primary duty and responsibility provide protection and humanitarian assistance to internally displaced persons. As I have argued, the concept of IDP protection is embedded in more general notions of civilian protection rooted in international law, and therefore needs to be understood through the other Principles. This can create ambiguity in how states understand this responsibility, and states can use this ambiguity deliberately, to avoid sanction for violations of their domestic instruments or for creating weak instruments. And the Guiding Principles create only a diffuse responsibility for other actors, framed primarily through the actions of international humanitarian actors. This normative legacy is also reflected in the IDP regime itself. Even though the regime is informal, it has been institutionalized at the international level. It is both recognized and acknowledged by international actors and states. At the same time, it is both informal and bound up within the humanitarian regime complex. This creates three issues. First, critical international actors for IDPs—such as UNHCR—are divided between this regime and other more formalized regimes. Second, this regime also borrows core concepts from other regimes, like how IDP protection is conceived. And, third, because people can have particular and multiple statuses across these different regimes, too often IDP status is the one that becomes marginalized.

233

When will reality meet rhetoric?

233

These issues are not insurmountable. For a soft law document, the Guiding Principles on Internal Displacement have moved remarkable far in 20 years. Improving domestic-level implementation of IDP laws and policies will not only help to clarify and improve many of these issues, but also help to settle the norms within the IDP regime. There are also ways to improve the IDP regime. One approach would be to formalize it. As we have seen, however, there remain significant concerns around creating an IDP convention. And proposals have existed for 25 years to either create a new UN agency or to assign the duty to UNHCR, neither of which have come to fruition. Incremental steps, therefore, are more likely. Here, increased policy support and increased financial contributions for assistance and protection, as well clarifying what protection means for IDPs in a clear and distinct fashion, can all make a significant difference. IDPs as an international concern remain a relatively new issue. Before the 1990s, they were not widely recognized. The fact that our efforts to protect and assist them are as of yet incomplete should not be seen as a failure, but rather as a call to action to push forward to make sure that every internally displaced person can find safety and security.

Notes 1 See also Carr, “From Theory to Practice”; Ferris et al., “From Responsibility to Response.” 2 IASC, “Human Rights Up Front: An Overview,” July 2015, https://interagencystandingcommittee.org/system/files/overview_of_human_rights_up_front_july_ 2015.pdf. 3 HRC, “Institution-Building of the United Nations Human Rights Council,” Res 5/1, 18 June 2007. 4 All recommendations taken from UPR Database of Recommendations, www.uprinfo.org/database/.

Angola

2001 Council of Ministers Decree No. 1/01-Norms on the Resettlement of Internally Displaced Populations 2002 Council of Ministers Decree No. 79/02

2013 National Policy on Internally Displaced Persons

2005 IDP National Plan

Afghanistan

Law/Policy

Year

State

Yes

Yes

GPs IL

AID Change in Domestic Institutions (Italics denote new bureaucracy created)

Yes

No

Yes National Commission for No Social and Productive Reintegration of Demobilized Personnel and Displaced Populations

Yes Reactivated Provincial Subgroups on Displaced persons and Refugees

Limited

Problematic

Little government commitment but widespread returns occurred.

Capacity and land rights issues limited implementation.

International Effective Key Issues Involvement Implementation in Drafting

Yes Yes Yes Ministry of Rural No Rehabilitation and Development ; Ministry of Refugees and Repatriation (MoRR); Ministry of Frontiers and Tribal Affairs; Afghanistan Natural Disaster Management Authority (ANDMA) Yes Yes Yes Yes MoRR Yes

D

GP DEF IDP Rights

Annex table: domestic IDP policies or legislation

1998 Law on Population Protection in Emergency Situations

Azerbaijan

1999 Presidential Decree “On status of refugees and forcibly displaced (persons displaced within the country) persons” 1999 Law “On social protection of forcibly displaced persons and persons equated to them” 2004 Presidential Decree “State Program for the Improvement of living standards and generation of employment for refugees and IDPs” Bosnia 1995 General Framework Herzegovina Agreement for Bosnia and Herzegovina, Annex VII 1999 Instruction on the Return of Bosnian Refugees and Displaced Persons to/ within the Territory of Bosnia and Herzegovina 2005 Law on Displaced Persons and Returnees in the Federation of Bosnia and Herzegovina and Refugees from Bosnia and Herzegovina

Armenia

Yes

No

Yes

Yes

Yes Department for Refugees

Yes Federation Government/ Ministry for Human Rights and Refugees

Yes

Yes Yes Refugees and Displaced Persons Property Fund

Yes Implementation assigned to No Cabinet of Ministers, updates to President

Yes Yes State Committee on the refugees and forcibly displaced persons

Yes

Republic of Armenia No Government has monitoring role; State Migration Service in the Ministry of Territorial Administration Executive authorities of the No Republic of Azerbaijan

YesRC

Yes

Yes

Yes

Progressing

Progressing

Limited

Limited

(Continued)

Implementation affected by property rights and issues accessing rights.

Legislation still not conforming to GPs.

Focus on return only.

Significant returns, but no follow-up survey activity.

Law/Policy

2000 Arusha Peace and Reconciliation Agreement for Burundi, Protocol IV 2001 Protocol for the Creation of a Permanent Framework for Consultation on the Protection of Displaced Persons 2004 Programme National de Réhabilitation des Sinistrés

2014 Draft National Law and Policy on Internal Displacement

Central African Republic

2005 Law on Displaced Persons, Returnees, and Refugees in the Republika Srpska 2010 Revised Strategy of Bosnia and Herzegovina for the implementation of Annex VII of the Dayton Peace Agreement (DPA)

Year

Burundi

State

(Continued )

Yes

AID Change in Domestic Institutions (Italics denote new bureaucracy created)

Yes Yes Yes Yes The Ministry of Health, Gender Promotion and Humanitarian Action

Yes

None

Problematic

Strong

Yes Ministry for Repatriation, No Reinstallation, and Reinsertion of Displaced and Repatriated Persons; National Commission for Land and Other Possessions

Yes

Yes

Draft not passed, government lacks capacity and authority.

Follow-up program focused on return, but issues with long-term resettlement.

Documents widely ignored by government.

However, strategy unfinished due to lack of international funds.

International Effective Key Issues Involvement Implementation in Drafting

Problematic

Yes Yes Ministry for Refugees and Displaced Persons

GPs IL

Yes- Yes National Commission for the Yes RC Rehabilitation of Sinistrés; National fund Yes Yes Yes Yes Committee for the Protection Yes of Displaced Persons; Technical Group for FollowUp

Yes

D

GP DEF IDP Rights

1997 Law 387 on internal displacement

1993 Law on the Status of Displaced Persons and Refugees

2014 Draft national law

1996 Law on Forcibly Displaced PersonsPersecuted Persons 2006 Law of Georgia on Internally Displaced Persons 2007 Law on Property Restitution and Compensation for the Victims of Conflict 2007 Decree #47 on Approving of the State Strategy for Internally Displaced Persons 2014 Law of Georgia on the Internally Displaced Persons (Refugees) from the Occupied Territories of Georgia

Colombia

Croatia

Democratic Republic of Congo

Georgia

Yes

Yes

Yes

Yes Yes Yes Yes Ministry of Refugees and Accommodation of Georgia Yes Yes Yes

Ministry of Internally Displaced Persons from Occupied Territories, Accommodation, and Refugees of Georgia

No

Yes Yes Commission on Restitution and Compensation

Yes

No

Yes Yes Ministry of Refugees and Accommodation of Georgia

No

Yes

Ministry of Refugees and Accommodation of Georgia

Yes

Office for Displaced Persons No and Refugees

Yes Yes National Council for Yes Comprehensive Assistance to Populations Displaced by Violence

Yes Yes Yes Yes

Yes

Yes

Colombian Constitutional Court has ensured improved implementation; additional legislation passed in 2005 and 2011.Implementation has been limited in areas without strong government presence.

Progressing

Progressing

Limited

Limited

Limited

None

(Continued )

IDP definition remains limited; implementation frustrated by lack of resources.

Implementation delayed.

Focus on return.

IDP definition remained limited.

Narrow in scope.

Law stalled at review stage since 2014.

Initially limited, Discriminatory policies then progressing toward minority IDPs. Improved standards since 2000 and most IDPs have returned.

Strong

2001 National Policies on the Handling of Internally Displaced Persons/ Refugees in Indonesia 2007 Law on Disaster Management

Indonesia

Iraq

2004 National Policy on Resettlement and Rehabilitation for Project Affected Families (development only) 2007 The National Rehabilitation and Resettlement Policy

India

2008 National Policy on Displacement

2012 Law Concerning Handling of Social Conflict

1994 Agreement on Resettlement of the Population Groups Uprooted by the Armed Groups

Guatemala

Law/Policy

Year

State

(Continued )

Yes

AID Change in Domestic Institutions (Italics denote new bureaucracy created)

No

No

Yes Yes Yes National Disaster Management Agency Yes Yes

Yes

No

No

Yes

Problematic

Problematic

Problematic

Problematic

None

Problematic

Failure to implement, heavily focused on returns.

Law uses “pengungsi,” which refers to both refugees and IDPs. Ongoing displacement in West Papua, other areas ignored.

Discontinued in 2004.

Lack of systematic response to conflict-induced displacement.

Many IDPs not recognized.

International Effective Key Issues Involvement Implementation in Drafting

Provincial governors

National Monitoring Committee

Yes Yes Technical Committee

GPs IL

Yes Yes Yes Yes Line ministries and Yes institutions; IDP Ministerial Committee; Supreme Committee for Displaced Person; Ministry of Displacement and Migration

Yes

Yes

D

GP DEF IDP Rights

Liberia

Lebanon

2002 Declaration of the Rights and Protection of Liberian Internally Displaced Persons 2004 National Community Yes Resettlement and Reintegration Strategy 2004 Guiding Principles on Internally Displaced Persons: Instrument of Adoption

2009 Strategy for Communities and Returns for 2009– 2013 2013 Strategy for Communities and Returns for 2014 to 2018 2010 Resolution on approval of the order of priority of providing housing to Kyrgyz citizens who were victims of the June 2010 events in Osh city, and Osh and Jalal-Abad districts 1993 Law 190 concerning the displaced

Kosovo

Kyrgyzstan

2012 The Prevention, Yes Protection, and Assistance to IDPs and Affected Communities Act, 2012 2010 Draft IDP policy Yes

Kenya

Yes Yes Liberia Refugee Repatriation No and Resettlement Commission

No

Yes Yes Yes Yes Results Focused Transitional Yes Framework Working Committee Yes

Yes

Ministry of the Displaced

No

Yes Yes Ministry of Communities and No Return (MCR)

Yes

Ministry of Emergency Situations

Yes Yes Ministry of Communities and No Return (MCR)

Yes

National Consultative Yes Coordination Committee on Internally Displaced Persons

Yes

Yes Yes Yes Yes

Yes Yes Yes

Progressing

Limited

Problematic

Limited

Limited

Progressing

(Continued)

Generally well implemented with significant returns; some IDPs excluded from assistance.

Slow process of return, appears to have not been applied in 2006. Does not reference Guiding Principles; slow pattern of returns.

Limited to 2010 events, lack of national capacity for implementation.

Focus on returns instead of other durable solutions, little implementation of housing assistance.

Legislation has been impeded by failure to adopt draft IDP policy.

2004 Relief Program for Internally Displaced People Due to Conflict for FY 2004/05 2007 National Policy on Yes Internally Displaced Persons

2006- National Policy on Yes 2012 Internally Displaced Persons (IDPs) in Nigeria

2004 Law No. 28223 Concerning Internal Displacements

Nepal

Nigeria

Peru

2014 Law for the prevention of Yes and response to internal displacement in the state of Guerrero, Decree No. 487, 2014

2012 Law for the prevention of Yes and response to internal displacement in the state of Chiapas, Decree No. 158, 2012 2012 General Law on Victims

GPs IL

AID Change in Domestic Institutions (Italics denote new bureaucracy created) Yes

Yes

Yes Yes Yes Yes various State entities and services

No

Yes Yes Yes Yes Central Steering Committee, Yes Chaired by Ministry of Home Affairs; Ministry of Peace and Reconstruction (MoPR) Yes Yes Yes Yes National Emergency Yes Management Agency (NEMA); IDP Focal Coordinating Institution

Central Legal Coordination and Directives Committee

Limited

None

None

None

Limited

None

Law contains clear measures but slow process and limited access for IDPs.

Policy stalled over identity of focal point institution.

Policy has not received Cabinet approval and has not been implemented.

IDPs not clearly defined; face recognition denials. Law appears to not yet be implemented.

Law is strong on paper but has not been implemented.

International Effective Key Issues Involvement Implementation in Drafting

The Executive Committee for No Addressing Victims Yes Yes Yes Yes Directorate General of Yes Monitoring, Control, and Evaluation of Human Rights Affairs

Yes Yes Yes Yes State Council for Integral Attention to Internal Displacement

D

GP DEF IDP Rights

Mexico

Law/Policy

Year

State

(Continued )

1993 Federal Law on Forced Migrants (1993, amended 1995 and 2003) 2002 National Strategy for Resolving the Problems of Refugees and Internally Displaced Persons

Russia

Yes

2014 Policy framework on displacement within Somalia

Sri Lanka

2007 Resettlement Authority Act of 2007

2002 National Framework for Relief, Rehabilitation, and Reconciliation

South Sudan 2011 Transitional Constitution

Somalia

Yes*

2006 Protocol on Voluntary and Sustainable Return Sierra Leone 2001 Resettlement Strategy Yes

Serbia

2013 An Act Protecting the Rights of Internally Displaced Persons

Philippines

Yes

Yes

Yes

Yes

Yes

Yes National Coordinating Committee on Relief, Rehabilitation, and Reconciliation Resettlement Authority

Council of States

Yes Ministry of the Interior and Federalism; Agency on Internal Displacement and Refugee Affairs

Yes Resettlement Steering Committee, chaired by National Commission for Reconstruction, Resettlement, and Rehabilitation

Yes Yes Coordinating Center for Kosovo and Metohija Task Force for Monitoring the Implementation of the National Strategy Yes Yes

Yes Yes The migration service

Yes Yes Yes Yes Commission on Human Rights

No

Yes

No

Yes

Yes

No

No

No

Problematic

Limited

None

Limited

Strong

Progressing

Limited

None

(Continued )

No further actions have been taken by the government. While relatively strong, the framework’s implementation was halted by the renewal of conflict. Requires implementation policy which was not introduced.

Bureaucratic support but policy remains in draft form and efforts limited by capacity problems.

Strong resettlement strategy coupled with the end of conflict and peacekeeping mission led to significant returns.

Narrow definition, prioritizes returns, limited duration of status. Slow implementation and IDPs face procedural difficulties within the legal system.

Draft bill vetoed; new versions not yet passed.

Ministry of Interior

Yes Vice Prime-minister; Ministry of Social Services

All levels of government; Humanitarian Aid Commission; High Committee Yes Yes Central Department for Refugees of the Labor and Employment Ministry

No

Initially problematic, then limited

Limited

Progressing

Strong

No

No

Problematic

Progressing

Problematic

Yes

No

Yes Yes Yes Yes Office of the Prime Minister— Yes Department of Disaster Preparedness and Refugees

2004 The National Policy for Internally Displaced Persons

Uganda

Yes

Yes

Yes

2005 Integrated Strategy Document

Turkey

Yes

Yes

1994 The Law of the Republic of Tajikistan on Forced Migrants

Yes

Ministry of Resettlement

Strong policy, however implementation delayed.

Full implementation repeatedly delayed and limited financial commitments by government; focused on return only.

Some implementation issues, but all IDPs now appear to have received durable solutions. Initial implementation weak due to capacity constraints, however almost all IDPs returned by 2010.

Access issues and lack of institutional capacity persist.

Draft form only; provides limited definition of IDP status and focused on returns. Clear policy but implementation has only begun.

International Effective Key Issues Involvement Implementation in Drafting

Yes Yes Yes Yes Ministry of Prison Reforms, Yes Rehabilitation, Resettlement, and Hindu Religious Affairs

GPs IL

AID Change in Domestic Institutions (Italics denote new bureaucracy created)

2016 National Policy on Durable Solutions for Conflict-Affected Displacement 2009 National Policy on Internal Displacement

D

GP DEF IDP Rights

Yes

Law/Policy

2013 Framework for Resettlement Policy

Year

Timor-Leste 2007 ‘Hamutuk Hari’i Futuru’ A National Recovery Strategy

Tajikistan

Sudan

State

(Continued )

2015 Law of Ukraine on Ensuring Rights and Freedoms of Internally Displaced Persons 2013 National Policy for Yes Addressing Internal Displacement in the Republic of Yemen 2013 Guidelines for the Yes compensation and resettlement of internally displaced persons 2008 Global Political Agreement 69 19

2014 Resolution 509

Yes Yes The Cabinet of Ministers of Ukraine

Yes

Yes

No

41 30

41

46

Yes 33

Yes

Yes Yes Yes Yes The Department of No Resettlement under the Office of the Vice President

Yes Yes Yes Yes The executive unit for IDPs

Yes

Ministry of Social Policy and State Emergency Services

Problematic

Strong

Limited

Limited

Problematic

Strong policy but implementation affected by significant government capacity constraints. Policy clearly reflects Guiding Principles and provides for durable solutions and compensation. Initially strong commitments have seen no further action.

Improved IDP definition, but lacks IDP strategy.

Allowed for IDP registration, but confusing and limited IDP definition.

Sources: Initial policies and legislation were gathered from Brookings Institute-University of Bern Project on Internal Displacement National and Regional Laws and Policies on Internal Displacement Index (www.brookings.edu/projects/idp/Laws-and-Policies/idp_policies_index.aspx) and the Brookings-Bern/Institute for the Study of International Migration at Georgetown University Global Database on the Guiding Principles on Internal Displacement (www.idpguidingprinciples.org), unfortunately both sites have now closed. Newer materials were gathered from IDMC “IDP Laws and Policies: A Mapping Tool,” (www.internal-displacement.org/law-and-policy), UNHCR’s Refworld www.refworld.org, and my own research. All laws and policies listed are available from the author.

Specific table notes: * Definition used, but Guiding Principles not explicitly cited. RC Refugee Convention alone referred to.

Notes: Column titles list whether the definition from the Guiding Principles (GP DEF) is used, whether IDP rights included in the document refer to domestic sources of law (D), the Guiding Principles (GPs), or other international law (IL) and whether the document accepts a right of the international community to provide aid (AID). It then lists the governmental bureaucracy given responsibility for assisting the displaced, and whether this is a new entity; the level of implementation based on the five-point scale laid on page 139 and key issues with the implementation process.

40

Zimbabwe

Zambia

Yemen

Ukraine

Select bibliography

Bagshaw, Simon, Developing a Normative Framework for the Protection of Internally Displaced Persons (Ardsley, NY: Transnational Publishers, Inc., 2005). Betts, Alexander and Phil Orchard (eds.), Implementation and World Politics: How International Norms Change Practice (Oxford: Oxford University Press, 2014). Cohen, Roberta and Francis Mading Deng, Masses in Flight: The Global Crisis of Internal Displacement (Washington, DC: Brookings Institution Press, 1998). Ferris, Elizabeth G., The Politics of Protection: The Limits of Humanitarian Action (Washington, DC: Brookings Institution Press, 2011). Ferris, Elizabeth G., Erin Mooney, and Chareen Stark, From Responsibility to Response: Assessing National Approaches to Internal Displacement (Washington, DC: Brookings Institution-LSE Project on Internal Displacement, 2011). Internal Displacement Monitoring Center (IDMC), Global Report on Internal Displacement 2018 (Geneva: Internal Displacement Monitoring Center, 2018). Jacques, Mélanie, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law (Cambridge: Cambridge University Press, 2012). Kälin, Walter, Guiding Principles on Internal Displacement: Annotations, 2nd ed. (Washington, DC: The American Society of International Law, 2008). Loescher, Gil, The UNHCR and World Politics: A Perilous Path (New York: Oxford University Press, 2001). Orchard, Phil, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press, 2014). Phuong, Catherine, The International Protection of Internally Displaced Persons (Cambridge: Cambridge University Press, 2004). United Nations, The Guiding Principles on Internal Displacement (New York: Office for the Coordination of Humanitarian Assistance, 1998). Weiss, Thomas G. and David A. Korn, Internal Displacement: Conceptualization and Its Consequences (Oxford: Routledge, 2006).

Index

access 10, 11, 47, 89, 100, 123–4, 141, 193, 196, 200, 203, 212 accountability mechanisms 15, 120, 159, 229–30 accountability to affected populations 120–1 Acharya, A. 24 Acheson, D. 74–5, 80 Additional Protocol II 50 ad hoc responses 3, 88–9, 115, 117 advocacy 13, 138 Afghanistan 124, 194–6, 212, 213, 226; cluster approach in 194; Ministry of Refugees and Repatriation 194–5; national policy 194–5; Taliban 193 African Charter on Human and Peoples’ Rights Article 62 process 54, 61 African Court of Justice 54–5 African International Conference on the Great Lakes Region 7, 52; see also Protocol on Protection and Assistance to Internally Displaced Persons African Union 52, 54, 105; Commission 55; Constitutive Act: Article 4(h) 53; mission in Central African Republic 205; Special Summit of Heads of State 8 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention) 8, 14, 52–6, 105, 125–6, 223; 2012 entry into force 8; Conference of State Parties 54; monitoring

mechanisms 54; remedies clause 53, 61; signatories 145, 153, 158, 171, 177, 180, 181, 197, 205, 206, 207, 209, 210, 211 al-Houthi, H. B. 183 Angola 92, 97, 170–1, 185, 225, 227, 230; IDP policies 170–1, 227; National Union for the Total Independence of Angola 170; Security Council mission to 116 Annan, K. 7, 115, 123; mission to Kenya 127; see also United Nations Secretary-General Aquino, B. III 210 arbitrary displacement 44, 49–51, 52, 53, 135, 151, 200, 207, 211 Armenia 168–70, 185, 225, 226; 1998 Law 169, 225; Department for Migration and Refugees 169; State Migration Service 170 Arrangement concerning the Extension to Other Categories of Refugee of Certain Measures taken in favor of Russian and Armenian Refugees (1928) 66 Arrangement of 12 May 1926 relating to the Issue of Identity Certificates to Russian and Armenian Refugees 65–6 Arrangement with regard to the Issue of Certificates to Russian Refugees (1922) 65 Asian-African Legal Consultative Committee 42 assistance 4, 6–7, 10–11, 12, 47, 65, 69–73, 75–6, 77, 79–81, 88, 98,

246

Index

101–2, 104, 128, 223, 225, 230; inclusion within domestic laws and policies 224; link with protection 104 asylum 1, 9, 30, 40, 67, 79, 118, 122, 126 asylum seekers 59, 94 atrocity crimes 10, 89, 126, 127, 229; see also Responsibility to Protect Australia 230–1 Austria 75, 79–80, 231; Jews 71–2; support for RSG 102–3; Volksdeutsche issue 79–80 authority 23, 137 Azerbaijan 146–7, 159; 1999 Law on the Status of Refugees and Forcibly Displaced Persons 146; State Committee for Refugees and IDPs 146 Bagshaw, S. 117 Bakiyev, K. 173 Bangkok Principles 42 Bangladesh 90; see also East Pakistan Bermuda Conference (1943) 68 Betts, A. 25 Beyani, C. 5, 136, 147, 150, 154, 155, 156–7, 173, 182, 195, 201, 203, 210, 212; see also United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons borders 9, 23, 43, 49, 50, 67, 118 Bosnia-Herzegovina 114, 122, 140–2, 159, 225, 226; Joint Declaration on Resolving Protracted Displacement 141; Law on Refugees from BiH and Displaced Persons in BiH 140; Ministry for Human Rights and Refugees 140; Revised Strategy 141 Bosnian War (1992–1995) 122, 140 Boutros-Ghali, B. 102 Bozizé, F. 205 Brahimi Report on Peace Operations 123 Brookings-LSE Project on Internal Displacement 5, 136; 2015 closure 5 Brookings Project on Internal Displacement 103 Brundtland, G. H. 97 Burundi 196–7, 213, 227; 2001 Protocol 196; Arusha Accords Protocol IV 196; sinistrés 196 Bush, George H. W. 99

246 camps 11, 12, 71, 72, 81, 124, 129, 145, 146, 152, 157, 173, 180, 196, 203, 209, 212, 226 capacity 15, 25, 118, 137, 193, 212, 226, 228 Cartagena Declaration on Refugees (1984) 42 Central African Republic 55, 124, 205–6, 212, 226; anti-balaka 205; ethnic cleansing in 205; Ministry of Health and Humanitarian Action 206; Séléka 205 Chad 94 Chapter VII 88, 90, 100, 127 China 69; abstention on Resolution 688 101; concerns over Guiding Principles 105 civilians 12, 13, 22, 49, 50, 53, 69, 96, 100, 114, 122, 123, 154, 180, 184, 211, 212, 229; status 30 civil society 23, 54, 119, 121, 128, 150, 153, 156, 175, 178, 197, 200, 208, 210, 228 Clayton, W. 74 cluster approach 5, 9, 30, 116–21, 234; accountability within 118; evaluations 119; lead agencies within 9, 118, 130; role of UNHCR within 9, 118 Cohen, R. 96, 104, 115 collaborative response system 114–15, 116; criticisms of 116–17 collective punishment 50 Colombia 142–4, 159, 228, 231; Constitutional Court 143, 159, 228; Justice and Peace Law 143; Law 387 on Internal Displacement 142; National System of Comprehensive Attention and Reparation for Victims 143; Presidential Agency for Social Action and International Cooperation 143; Registro Unico de la Población Desplazada 142; Sistema Nacional de Atención Integral a la Población Desplazada 143; Victims Law (Law 1148) 143, 161–2 Compilation and Legal Analysis (1996) 45–6 complementary protection 41 complex humanitarian emergencies 4

247 compliance 26 Conference on the Plight of Refugees, Returnees, and Displaced Persons in Southern Africa 97 consent 7, 102, 125; for humanitarian assistance 128 containment policies 40, 121 contestation 24–5, 26, 28; as domestic process 27 Convention against Torture (1984) 42 Convention concerning the Status of Refugees Coming from Germany (1938) 67, 68 Convention on the Elimination of All Forms of Racial Discrimination (1965) 50 Convention relating to the International Status of Refugees (1930) Convention Relating to the Status of Refugees (Refugee Convention) (1951) 1, 7, 16, 22, 30, 40, 41–2, 43, 49, 63; analogous refugee law in the Guiding Principles 6, 103; cessation clauses 48; and generalized violence 41, 57; negotiations over 74–9 Côte d’Ivoire 124; Responsibility to Protect in 128 Council of Europe 51–2, 105, 150, 169, 173, 182, 183 crimes against humanity 50, 53 Croatia 147–9, 159, 227, 228–9; 1993 Law 148; action plan 148; Basic Agreement 148; Office for Displaced Persons and Refugees 147 crude mortality rates 11–12 Cuba 100 Cuénod report 98, 114 Cyprus 92 Dayton Peace Agreement Annex VII 140–2 decision-making authority 24 Democratic Republic of Congo 55, 124, 206–7, 213, 229; cluster approach in 119; Comité National pour les Refugiés 206; draft IDP policy 207; Ministry of Social Affairs 206–7 Deng, F. 4, 5, 12, 45, 96, 103–4, 114–15, 126, 136, 142, 145, 149,

Index

247

169, 171, 175, 179, 196; see also United Nations Representative of the Secretary-General on Internally Displaced Persons deportation 51 development-induced displacement 39, 44, 49, 225 diffuse responsibilities 6, 232 direct responsibilities 6, 232 disaster–induced internal displacement 44 discrimination 44, 46 disease 11 displaced persons 2, 68–70, 75, 90, 92; as a catch-all term 2; definition of 63; numbers during Second World War 68 divided actors 29 Djotodia, M. 205 Doe, S. 152 domestic institutions 23, 228 domestic laws and policies 9, 15, 22, 55, 135, 137; incorporation of Guiding Principles 136; issues 168; narrower than Guiding Principles 168 domestic level 23, 26, 44 durable solutions 10, 47, 54, 58, 139, 145, 146, 147, 149, 151, 155, 156, 168, 172, 173, 174, 178, 183, 184, 185, 194, 195–6, 197, 200, 203, 207, 208, 212, 213, 225, 228; Brookings-Bern framework 48; ExCom conclusion on 97; Protection of Civilians agenda and 129; Security Council support 124; two-step process 49 Eagleburger, L. 122 East Pakistan 90 Economic Community of West African States 51, 105 Egeland, J. 117, 180 Egypt 105 elections 228 El Salvador 94 Emergency Relief Coordinator 101, 117, 118, 180 emergency shelter 11; see also camps Ethiopia 94

248

Index

ethnic cleansing 10, 49, 50, 126, 205; Security Council Commission of Experts definition 60 European Civil Protection and Humanitarian Aid Operations (ECHO) 184–5 European Parliament 41 European Union 148, 179, 229 Ferris, E. 5, 119–20, 126 Finnemore, M. 22–4 focal point 90, 114, 115, 169, 170, 175, 178, 182, 183, 184, 194, 206, 210, 211 forced deportation 31, 48, 50, 51, 126 forced migrants 39, 97, 101 forced migration 5, 39–40 forcible transfer 50, 51, 126, 229 Ford Foundation 81 framing 22 France 65, 68, 76, 78–9; role in Côte d’Ivoire 128; role in northern Iraq crisis 99–100 Frost, M. 23 Geneva Conventions 7, 45, 89, 96 genocide 28, 53, 69, 122, 125, 230; convention 28, 50, 53; forced displacement as 50; in Kampala Convention 53; within the Responsibility to Protect 126–7 Georgia 105, 149–51, 159, 226, 228; 2014 law 150; Constitutional Court 150, 159; Law on Forcibly Displaced Persons-Persecuted Persons 149; Ministry of Internally Displaced Persons from the Occupied Territories, Refugees, and Accommodation 150; Public Defender 150; state strategy 150 Germany 67, 68, 72, 73, 75, 79; Control Council 71; issue of protection 68; Jews 71–2; Volksdeutsche issue 70, 75, 79–81 global governance 22 Goedhart, G. J. van Heuven 79 Goldman, R. 103 Goodwin-Gill, G. 13, 41, 49 Greece, internal refugees in 14, 75

248 Guatemala 114, 197–9, 213, 227; 1994 Agreement 198; National Reparation Commission 198; Technical Committee 198; Truth Commission 198 Guiding Principles, definition 4, 21, 40, 43–4, 52; international practice crystallized around 4; issues 44; reflection in domestic laws and policies 136–7, 224–7 Guiding Principles on Internal Displacement 4, 15, 21, 26, 27, 30, 32, 39, 40, 44, 48, 89, 113, 125, 135, 136, 225, 231, 232; alternative to a convention 45; as basic international norm of IDP protection 7; basis in international law 8; concerns over 10; creation of 103; domestic alignment with 223–5; domestic incorporation of 136; factual description of IDP status 4; as important international framework 7; norm generating 6; recognition of 51, 105; rights within 45–9; as soft law 8 Guinea-Bissau 90 Gulf Cooperation Council 184 Gulf War (1991) 4, 98–9 Hadi, A. 184 Haiti, cluster response in 119 Hartling, P. 94; views on man-made and natural disasters 108–9 hate crimes 141 Hathaway, J. 40 Holbrooke, R. 3, 116–17 Holocaust survivors 71–2, 73 Humanitarian Coordinator 116, 117, 153; role in cluster approach 118; role in Transformative Agenda 120 humanitarian intervention 61 humanitarian organizations 47; during the Biafra Conflict 90; and protection 13–14 humanitarian principles 30; commitment to as part of the cluster approach 120 humanitarian protection regime complex 22, 229 humanitarian response 11; see also assistance

249 human rights 16, 41, 44, 88; link with IDPs 229–30 Human Rights Up Front Initiative 230 Human Rights Watch 119, 146, 148, 170, 180, 209, 211, 229 identity 6, 14, 26 IDP assistance norm 6, 88, 89–95, 232 IDP definition norm 6, 89, 113, 231–2 IDP “problem” 21 IDP Project 103 IDP property rights 104; at the domestic level 140–1, 143, 145, 146, 148, 172, 184, 196, 226; within the Guiding Principles 46–7 IDP protection norm 6, 89, 232 IDP protection regime 7, 9, 14, 21, 22, 30, 32–3, 39, 113, 232; informal 7–9; institutionalized 7 IDP return, resettlement, and reintegration 47; see also durable solutions IDP Task Force 102 implementation 15; conflict and 212; domestic-level 135–40, 213, 226–31; failures 193; international support for 228; problems 168–9, 224–7; as process 15, 232; role of domestic institutions in 228–9; scale 139; stalling out 15, 137–8; timing 226–7 Independent Commission on International Humanitarian Issues 96 India 91, 105, 207–8, 213, 225; 2007 policy 207; National Policy on Resettlement and Rehabilitation for Project Affected Families 207 Indian partition 14; creation of internal refugees 14 indigenous people 175, 198; within the Guiding Principles 46, 49 Indonesia 89, 157, 199–200, 213, 225; 2002 IDP policy 199; 2007 law 199; 2012 law 199–200; displacement in West Papua 200, 225; National Board for Disaster Management 199; “pengungsi” 199 informality 10 informal practices 21, 95 institutionalization 22, 24–5, 32, 232; of the IDP regime 31–2

Index

249

Inter-Agency Standing Committee 13, 89, 101, 115, 128; definition of IDP protection 13, 116; level three emergency 120, 206, 226; Transformative Agenda 120–1 Inter-American Commission on Human Rights 51, 174, 175, 198 Intergovernmental Committee for European Migration 64, 74; see also International Organization for Migration Intergovernmental Committee on Refugees 68–9 Internal Displacement Monitoring Centre 2, 5, 44, 55, 103, 141, 142, 143, 145, 147, 148, 149, 150, 151, 155, 158, 170, 172, 173, 174, 176, 177, 178, 179, 194, 195, 199, 200, 201, 202, 203, 205, 206, 207, 208–9, 210, 212, 229; training 17 internal flight alternative 40 internally displaced persons (IDPs): as citizens 3; critiques of term 3–4; and crude mortality rates 11–12; cycle 9; definition of 4; (see also Guiding Principles, definition); as a distinct category 9–13; as a distinct group 6; distinction from refugees 3; durable solutions 9; emergency phase 10; forcible return 104; as an international problem 3–4; issues caused by displacement 11; lack of identification 11; new international organization for 9, 114; numbers 1–2, 43–4, 96; posttraumatic stress disorder 11; reasons for flight 3; registration 11, 144, 146, 151, 153, 156, 157, 169, 170, 182, 183, 184, 204, 225; as right holders 229; rights of 39; status of 30; visibility of 119 internal refugees 1, 14, 63, 75–7, 80; and Refugee Convention 63–4, 75–7 International Committee of the Red Cross 3, 7, 50, 89, 96, 103, 106, 118; concerns with Guiding Principles 10; definition of protection 13; reservations with cluster approach 118; Resolution XXI 96 International Conference on Central American Refugees 97

250

Index

International Covenant on Civil and Political Rights 50 International Criminal Court 51, 128, 230; Gbagbo case 128; Rome Statute 51 International Criminal Tribunal for the Former Yugoslavia 50–1 International Federation of the Red Cross 118 international humanitarian law 6, 10, 14, 50, 97, 103 international humanitarian law regime 29–30 international humanitarian regime complex 29–30 international human rights law 6, 14, 50, 103 international law 13, 39, 137 International Organization for Migration 103, 155 international organizations 24 international recognition 21 International Refugee Organization 71–3; displaced persons definition 71; need for new convention 73; refugee definition 71; response to German and Austrian Jews 71 International Relations (IR) 14; constructivism 14 interpretation 25, 26–7 Inzko, V. 142; see also Office of the High Representative Iran 100 Iraq 200–1, 213, 226; 2008 IDP policy 200–1; and the Islamic State 201; Kurdish population 4, 99, 121; Ministry of Displacement and Migration 200, 201; northern Iraq crisis 98–101, 121; Supreme Committee for Displaced Persons 201 Israel 31, 73 Italy 69

250 207, 208; see also United Nations Representative of the SecretaryGeneral for the Human Rights of Internally Displaced Persons Kennedy, E. 89 Kenya 127, 151–2, 159, 227; 2012 Act 151; National Consultative Coordination Committee 151; provisions against arbitrary displacement 151 Kiir, S. 211 Ki-Moon, B. 127 Korn, D. 3 Kosovo 51, 171–2, 185, 225; Kosovo Liberation Army 171; Manual for Sustainable Return 172; Ministry of Communities and Returns 172; NATO intervention in 171; Protocol on Voluntary and Sustainable Return with Serbia 172; Provisional Institutions of Self-Government for Kosovo 171; Strategy for Communities and Returns 172 Krasner, S. 8 Kyrgyzstan 173–4, 185, 225, 226; flash humanitarian appeal 174; National Policy on Internal Displacement 173

Jimenez-Damary, C. 5; see also United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons Johnson-Sirleaf, E. 153

landmines 27 Laos 93 League of Nations 43, 65–8; Council 66–7; High Commissioner for Refugees 65, 66 Lebanon 94, 201–2, 213; and Hezbollah 202; High Relief Commission 202; Law 190 201; Ministry of Displaced 201 legitimacy 23–4; gaps 24 legitimation effects 23 Liberation Tigers of Tamil Eelam 154 Liberia 152–3, 159, 225, 227; 2002 declaration 152; Liberia Refugee Repatriation and Resettlement Commission 152; National Community Resettlement and Reintegration Strategy 152 Lie, T. 73

Kälin, W. 5, 6, 8, 43, 44, 45, 48, 52, 103, 117, 135, 136, 149, 154, 170, 178,

Mali 97 Marchar, R. 211

251 mass influx 57 McAdam, J. 41, 49 Médecins Sans Frontières 118, 170 Mexico 174–5, 185, 225; Chiapas state law 174; General Law on Victims 174, 225; Guerrero state law 175 Milosevic, S. 51 Mohamud, H. S. 177 Montenegro 154, 172–3; see also Serbia; Yugoslavia, former republic of Mozambique 92, 97 Mugabe, R. 204 Musevani, Y. 181 Myanmar 231 Nagorno-Karabakh 169 Nagorno-Karabakh War (1992–1994) 146, 169 Nansen, F. 65–6; see also League of Nations, High Commissioner for Refugees Nansen passports 65 national authorities 7, 10, 46–7; see also states natural disasters 117, 155, 158–9, 169, 208, 225; people displaced by 44; sudden-onset 56 Nepal 208–9, 213; 12-point agreement 208; 2007 IDP policy 208–9; ceasefire code of conduct 208; Kathmandu earthquakes 208; Maoist Victim’s Association 208; Ministry of Peace and Reconstruction 208; peace agreement 208; UN peacebuilding strategy for Nepal 209 nested 22, 28, 33 New York Declaration for Refugees and Migrants 4–5 Nicaragua 95 Nigeria 55, 89–90, 209–10, 213; draft national policies 209; National Commission for Refugees 209 Nkurunziza, P. 196–7 non-intervention 100–1 non-refoulement 42, 48 non-state actors 13, 57, 89, 201; and accountability 229; and persecution 41 normative grafting 89, 106 normative understandings 21

Index

251

norm emergence 22, 24 norm entrepreneur(ship) 22, 23, 91, 103 norm implementation 15, 22, 24–7, 28, 32; definition of 25; see also implementation norm interpretation 22 norm leaders 23 norm life cycle model 22–4 norm of freedom of movement 104 norms 5, 8–9, 21–6, 32, 125, 126, 128, 137–8, 229, 231; ambiguity 27, 28, 232; content 27; definition of 6, 22; fundamental 24; IDP definition as 6; internalized 23; as international structures 5; intrinsic characteristics of 27; legal 25; new 22; precision 27; principle 26, 95, 113, 232; proscriptive and prescriptive 27–8; reputational concerns 138; rhetorical entrapment 138; as rules 5, 24; settled 23; shaming efforts 138; shared understandings 3, 21, 223; stretching 26–7; treaty 25, 26, 113; as works in progress 25; see also IDP assistance norm; IDP protection norm norm violation 24 North Atlantic Treaty Organization 194; intervention in Kosovo 153, 171 North Vietnam 89 Norwegian Refugee Council 103, 150, 209 Nowak, M. 103 Office of the High Representative 140–1, 142 Ogata, S. 103, 115 Operation Provide Comfort 99, 121; see also Iraq, northern Iraq crisis Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa 42, 54 Organization for Security and Cooperation in Europe 51, 105, 170, 172, 183 Organization of American States 51, 105 Ottoman Empire 66 Ozal, T. 99

252

Index

Pakistan 90 Palestinians 31, 73 partition of India 73, 75–6 Paul, D. 117 peacekeeping 13, 14, 32, 121–6, 234; and durable solutions 124; and IDPs 123–4 peace processes 213, 227 persecution 41, 43 Peru 175–6, 185; 2004 Law 175–6; issues with compensation 176; Ministry of Women and Vulnerable Populations 175; National Committee for the Displaced 175; Program for the Support of Resettlement 175 Philippines 210–11, 228; Commission on Human Rights 211; vetoed IDP act 210 policy norms 26, 113; development within United Nations 113 policy response 22, 168 political elites 24 Poroshenko, P. 183 positive duty 28 protection 4, 7, 12–13, 29, 47, 66–7, 77–8, 88, 96–8, 103, 104, 115, 118, 122, 128, 137; in existing law 103; Inter-Agency Standing Committee definition 13, 115–16; International Committee of the Red Cross definition 13; legal 7, 13, 64, 75, 115–16, 128; role of international community in 12; safe areas and 121 protection against forced return 47–8 Protection of Civilians agenda 15, 123–4, 129, 234; caveats 125; discussion in Report of the High-Level Independent Panel on Peace Operations 125; Office of Internal Oversight Services report 125; see also peacekeeping Protocol on Protection and Assistance to Internally Displaced Persons 7, 52; see also African International Conference on the Great Lakes Region Protocol Relating to the Status of Refugees (1967) 7, 40, 78

252 protracted IDP situations 12, 119–20, 142, 175, 177, 179, 186, 197, 200 Provisional Arrangement concerning the Status of Refugees coming from Germany (1936) 67, 82 refugee 1, 3, 16, 22, 39, 40–1, 91–4, 122; Convention 41; and crude mortality rates 11–12; definition of 41, 64–9; group or categorical approach to 43, 66; “hard core” 72–3, 75; mandate 42; protection 14, 40, 118; reasons for flight 3; regime 7, 22, 29–30, 33, 115; repatriation 32; returns 5, 95; status 30, 41; as “unprotected persons” 65, 67 “regermanization” 71–2 regime complex 29; messiness 29 regime complexity 9, 29–30; definition of 9 regimes 5, 8–9, 28; definitions of 8–9, 28; emergence of new 8; informal 8; as made up of norms 8; nesting 14; parallel 14; see also IDP protection regime regional instruments 52 regional level 25 reintegration 47, 49, 72, 103, 140, 144, 150, 152, 157, 171, 172, 175, 178, 196, 197, 207, 210, 211, 213, 227 Report of the High-Level Independent Panel on Peace Operations 125 resettlement 47, 50, 52, 75, 91–2, 93, 124, 144, 146, 152, 155, 157, 158, 170–1, 175, 176, 177, 195, 196, 197, 198, 203, 207, 210, 211, 227 Resident Coordinator 116, 117 Responsibility to Protect 14, 15, 29, 30, 126–8, 129, 229–30; application in Libya 128; within Kampala Convention negotiations 53, 61; pillar strategy 127 right to seek asylum 30 Rochefort, R. 78 Roosevelt, E. 1, 63, 74, 76, 78 rules 28

253 Russia 65–6, 176–7, 185, 225, 227; Constitutional Court 177; federal law on forced migrants 176, 225; federal subjects 176; Migration Service 176; see also Union of Soviet Socialist Republics Russian refugees 65 Russian Revolution 65 Russo-Georgian War (2008) 150, 226 Rwandan genocide 122 Sadruddin Aga Khan 89–94, 96 safe areas 121–2 Saleh, A. 183 Samba-Panza, C. 205 Save the Children 118 Savimbi, J. 170 scope of variation 26 Second World War 1, 68–70 Senior Inter-Agency Network on Internal Displacement 115, 171, 196 Serbia 51, 153–4, 160; Commissariat for Refugees 153; National Strategy for Resolving the Problems of Refugee and Internally Displaced Persons 153; see also Yugoslavia, former republic of Sierra Leone 144–5, 159, 227; Lome Peace Accord 144; resettlement strategy 144 Sikkink, K. 22–4 Somalia 32, 94, 177–8, 185; and Al-Shabaab 177; Federal Government of 177; Ministry of Interior and Federalism 177, 178; National Commissioner of Repatriation and Resettlement of Refugees and IDPs 177; policy 177; Puntland IDP policy 178; Somalia IDP Solutions Initiative 178; Somali Compact 177; Somaliland IDP policy 178; Transitional Federal Government of 177 South Africa 37–8 South Sudan 211–12, 213, 227–8; 2011 transitional Constitution 211; human rights violations 212; UNMISS protection sites 211–12

Index

253

sovereignty 3, 7, 10, 12, 30, 47, 88, 98, 100, 101; as responsibility 12, 29, 126; see also Deng, F. Spanish Civil War 69 Srebrenica (Bosnia) 123 Sri Lanka 154–7, 159, 228; Framework for Resettlement Policy 155; Ministry of Resettlement 155; National Framework for Relief, Rehabilitation, and Reconciliation 154; Resettlement Authority Act 155 standardized procedures 24 stateless 67 states 3, 8, 13, 23, 26, 28, 41, 44, 49, 52, 64, 88, 117, 121, 126, 193, 223, 229; agency 29; and assistance 3; capacity 15; and protection 3, 13; reputational concerns 138; rhetorical support for norms 138; role in access 10; weakness in IDP response 10–11 Strohal, C. 102 Study of Statelessness, A (ECOSOC) 73 Sudan 91–2, 130, 202–3, 212; 2009 IDP policy 202; concerns over Guiding Principles 105; Darfur Regional Authority 204; first Sudanese civil war 91; High Committee on IDPs 203; humanitarian response 117; restrictions in Darfur 10, 203; and UNAMID 203 Suharto 199 Supreme Headquarters Allied Expeditionary Force 69 survival migrants 39 Sustainable Development Goals 4, 224 Syria 10, 105, 128, 230 Tajikistan 145–6; 1994 Law on Forced Migrants 145; Department of Refugee Affairs 145 Talal, H. Bin 96 Taylor, C. 152 terrorism 4, 10 Timor-Leste 157–8, 159, 226; cluster approach in 157; Hamutuk Hari’i Futuru 158; International Stabilization Force 157; Ministry of Social Services 158 Touadéra, F-A. 205

254

Index

transnational advocacy networks 23 Traorpé, M. 97 Turkey 66, 99, 178–9, 186, 226; 2004 law 179; border closures 121; conflict with Kurdish Workers’ Party 178; evacuations 178; Ministry of Interior 179; national IDP strategy 179; Return to Village and Rehabilitation Project 179 Uganda 180–1, 229; cluster approach in 119; Department of Disaster Preparedness and Refugees 181; IDP policy 180–1; inter-agency technical committee 180; and Lord’s Resistance Army 180; Peace, Recovery, and Development Plan for Northern Uganda 181; protected villages 180; and UN Security Council 181 Ukraine 181–3, 225, 227; 2014 law 182; 2016 law 183; Cabinet of Ministers 182; Ministry of Social Policy and State Emergency Services 182; Ministry of Temporary Occupied Territories and Internally Displaced Persons 183; Resolution 509 182; separatist movements in 181 Union of Soviet Socialist Republics 66, 80, 85, 101; prisoners of war 84; support for Resolution 688 101 United Kingdom 76, 77, 99–100, 121; crisis in northern Iraq 99; Foreign Office 70; proposed refugee definition 77–8 United Nations Ad Hoc Committee on Statelessness and Related Problems 74, 75, 76–8 United Nations Assistance Mission in Afghanistan 124 United Nations Assistance Mission in Darfur 203 United Nations Assistance Mission in Rwanda 122 United Nations Charter 30, 88, 90, 100 United Nations Children’s Fund 96, 130 United Nations Commission on Human Rights 5, 7, 31, 32, 102–4, 114;

254 recognition of Guiding Principles 7, 104; support for analytical report on IDPs 102 United Nations Committee on the Elimination of Racial Discrimination 157 United Nations Committee on the Rights of the Child 210 United Nations Development Program 92, 110, 202 United Nations Disaster Relief Coordinator 98 United Nations Economic and Social Council 74–5, 76, 80, 93, 98, 101 United Nations General Assembly 2, 5, 7, 15, 31, 74, 78, 89, 102, 104, 105, 114, 135, 231; recognition of Guiding Principles 7, 104; Refugee Convention negotiations 75–8; Resolution 46/182 7, 101, 106; Resolution 70/165 17 United Nations Global Compact on Refugees 5 United Nations Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees 43 United Nations High Commissioner for Refugees 2–3, 6, 9, 21, 22, 48, 54, 55, 96, 103, 106, 114–15, 122, 135, 142, 144, 145, 146, 147, 150, 153, 155, 156, 157, 177, 178, 183, 184, 194, 195, 197, 198, 200, 203, 206, 207, 210, 224, 231, 232; and Angola 92; assistance to IDPs 4, 14–15, 88–95; and Biafra Conflict 89; in Bosnia 122, 140; concerns over IDP role 115; as de facto agency for IDPs 9; definition of refugee protection 13; East Pakistan relief operation 90–1; ExCom conclusion on “Durable Solutions and Protection” 97; “good offices” 90; and Guinea-Bissau 92; Handbook for the Protection of Internally Displaced Persons 116; High Commissioner’s Dialogue on Protection Challenges 116, 127; negotiations over 74–9; operation in Cyprus 92–3; operation in Mozambique 92; operation in Sudan 91; protracted IDP definition 12;

255 response to Volksdeutsche issue 79–81; right to remain 122; role in the cluster approach 9; and Somalia 94; Statute 2, 16, 30, 42, 78; support for implementation efforts 138; use of externally displaced persons 93; view on persecution 41; Working Group on Solutions and Protection 97–8 United Nations Human Rights Council 7, 31, 32; recognition of Guiding Principles 7; Universal Periodic Review mechanism 230–1 United Nations IDP Interagency Working Group 153 United Nations Mission in Congo 124 United Nations Mission in Kosovo 171–2 United Nations Mission in South Sudan 123, 211–12 United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic 124 United Nations Office for Emergency Operations in Africa 96 United Nations Office for the Coordination of Humanitarian Affairs 101, 115, 119, 121, 178, 195, 199, 204; Internal Displacement Division 115; Internal Displacement Unit 115, 117–18, 180 United Nations Office of the High Commissioner for Human Rights 5, 230 United Nations Operation in Somalia II 32 United Nations Protection Force 122 United Nations Relief and Rehabilitation Administration 1, 63, 68–9, 72, 83, 85; Subcommittee on DPs 69 United Nations Relief Works Agency 2, 73, 96; creation of 73 United Nations Representative of the Secretary-General for the Human Rights of Internally Displaced Persons 5, 194; see also Kälin, W. United Nations Representative of the Secretary-General on Internally

Index

255

Displaced Persons 4, 114, 115, 180; creation of post 103; see also Deng, F. United Nations Secretary-General 2, 43, 73, 97, 231; Analytical Report of the Secretary General on Internally Displaced Persons 43, 114; Framework on Ending Displacement in the Aftermath of Conflict 174; Report on the Responsibility to Protect (2009) 126; requests for IDP assistance 15; Secretary-General’s Agenda for Humanity 4 United Nations Security Council 7, 31, 32, 90, 99–101, 116, 122–3, 127, 128, 230; position on Uganda 181, 229; recognition of Guiding Principles 7; Resolution 688 99–100; Resolution 1296 123 United Nations Special Committee on Refugees and Displaced Persons 71–2 United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons 5, 201; see also Beyani, C.; Jimenez-Damary, C. United Nations Special Rapporteur on the Right to Adequate Housing 173 United Nations special rapporteurs 32 United Nations World Summit Outcome Document (2005) 7, 104–5, 126 United States 14, 64, 74–81, 83, 89, 147; Committee for Refugees 2, 96, 103, 202; Congress 74; crisis in northern Iraq 99–100; Escapee Program 64, 74; State Department 74–81, 148, 184, 199 Universal Declaration of Human Rights 45, 50 U Thant 90 veto players 25 Vietnam 93 voluntary return 47, 123, 175, 197, 203, 204 war-affected civilians 7 war crimes 50, 53 Warren, G. 72, 74, 77 Weiss, T. 3

256

Index

“well-fed dead, the” 114 West Germany 79–80; 1955 nationality law 80; Basic Law 87; see also Germany Wiener, A. 24 World Food Program 130, 153, 226 World Humanitarian Summit 4, 52, 121, 224

256 Yemen 100, 183–5, 186, 228; Executive Unit for IDPs 184; national policy 184 Yugoslavia, former republic of 51 Zambia 158–9; Department of Resettlement 158–9 Zimbabwe 94, 100, 204–5, 213, 228; Global Political Agreement 204