Protecting IDP Manual

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Prot cting Int rnallDi plac d P r on :

A Manual for Law and Policymakers

October 2008


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Brookings InstitutionUniversity o Bern :: Project on Internal Displacement

Tabl o Cont nt

F w a Ack w g ........................................................................................................ iv

I c i ................................................................................................................................................... 1

PArt I: GenerAl ConsIderAtIonsC ap 1 The Guiding Principles and Human RightsBased Protection .............................. 11C ap 2 Framework or National Responsibility ......................................................................... 23

PArt II: ProteCtIon From dIsPlACementC ap 3 Displacement, Evacuations, and Relocations ......................................................... 43

PArt III: ProteCtIon durInG And AFter dIsPlACementC ap 4 Humanitarian Assistance ............................................................................................. 63C ap 5 Movement-Related Rights ........................................................................................... 81C ap 6 Family Li e ....................................................................................................................... 93C ap 7 Food ................................................................................................................................. 105C ap 8 Water and Sanitation ................................................................................................... 117C ap 9 Basic Shelter and Adequate Housing ...................................................................... 129C ap 10 Health ............................................................................................................................... 145

C ap 11 Recognition, Issuance, and Replacement o Documentation ............................. 157C ap 12 Property and Possessions .......................................................................................... 169C ap 13 Employment, Economic Activities, and Social Protection ................................... 189C ap 14 Electoral Rights ............................................................................................................. 205C ap 15 Education ........................................................................................................................ 223C ap 16 Other Regulatory Issues .............................................................................................. 241

A 1 Guiding Principles on Internal Displacement ......................................................... 249

A 2 Index o the Manual by Guiding Principles .............................................................. 259

A 3 Summary o Minimum Essential Elements o State Regulation .......................... 263

A 4 List o Further Reading and Tools .............................................................................. 269

li f Abb ia i ................................................................................................................................. 273

I f s bj c ........................................................................................................................................ 275


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ProteCtInG I nternAlly d IsPlACed Persons:A Manual or Law and Policymakers

iv

For word and Acknowl dgm nt

T his manual represents the culmination o a three-year process o research and consultation thatI initiated shortly a ter being appointed Representative o the Secretary General on the HumanRights o Internally Displaced Persons. The dra ting o the manual was undertaken in urtheranceo my mandate to engage in coordinated advocacy in avor o the protection and respect o the human rightso IDPs and, in particular, to continue my e orts to urther the dissemination, promotion and applicationo the Guiding Principles and to provide support or e orts to promote capacity-building and the use o theGuiding Principles, as well as the development o domestic legislation and policies (Human Rights CouncilResolution 6/32, paragraph 7(c)). The manual proceeds rom the recognition that the Guiding Principles, asthe key normative ramework or addressing internal displacement, require more precise guidelines in order

to be properly implemented.

The dra ting o the manual was overseen by a Steering Group o experts rom leading UN and otherinternational agencies and organizations, regional human rights bodies, and academic institutions comprisingSimon Bagshaw (UN OCHA), Guillermo Bettocchi (UNHCR), Janelle Diller (ILO), Maria Teresa Dutli(Head o the Advisory Service on International Humanitarian Law, ICRC), Lisa Jones (UN OCHA),Miloon Kothari (UN Special Rapporteur on adequate housing as a component o the right to an adequatestandard o living), Susan Martin (Georgetown University), Barbara McCallin (Internal DisplacementMonitoring Centre o the Norwegian Re ugee Council), Man red Nowak (Ludwig Boltzmann Instituteor Human Rights, University o Vienna and UN Special Rapporteur on torture), and Bahame Nyanduga(Special Rapporteur on Re ugees, Asylum Seekers, Migrants and Internally Displaced Persons in A rica o

the A rican Commission on Human and Peoples Rights).

The Steering Group identi ed key topic areas or guidance to national authorities that are based on aninitial study o existing laws and policies on internal displacement by Andrea Soelkner at the LudwigBoltzmann Institute o Human Rights and then commissioned expert studies on each topic. These studies were prepared by Camillo Boano and Roger Zetter, Anne Charbord, Shivani Chaudhry, David Fisher,Conor Foley and Barbara McCallin, Ambra Gobena, Jeremy Grace and Erin Mooney, Karen Gulick, ErinMooney and Jessica Wyndham, J. Oloka-Onyango, W. Courtland Robinson, David Tajgman, and RhodriC. Williams. Their studies served as the departure point or the dra ting o the manual and provide urtherin ormation and analysis or researchers and practitioners in the eld o internal displacement. They willbe made available in a orthcoming joint publication by the Brookings-Bern Project and the American

Society o International Law. Roberta Cohen o the Brookings-Bern Project was instrumental in makingthis project possible.

The government o Austria supported consultative meetings with expert practitioners rom internationalorganizations, governmental experts rom countries dealing with internal displacement, and civil society,held in Vienna in September 2006 and May 2008 and hosted by the Ludwig Boltzmann Institute o Human Rights, to ensure that the text was realistic and in ormed by recent practice.


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ForeWord And ACKnoWledGements

Funding or this manual is grate ully acknowledged as provided by the oreign ministries o Denmark,Finland, Luxembourg, Norway, and Sweden; the Canadian Department o Foreign A airs and International Trade; the Swiss Department o Foreign A airs; the U.K. Department or International Development; theU.S. Agency or International Development; and the Paul D. Schurgot Foundation.

Elizabeth Ferris and Khalid Koser dra ted short sections o the manual, and Erin Williams edited it. TheBrookings-Bern Project provided logistical support during its development.

The manual was prepared by Rhodri C. Williams.

Walter KlinRepresentative o the UN Secretary-Generalon the Human Rights o Internally Displaced Persons


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Introd ction

T his manual is meant to provide guidance to national authorities seeking to prepare and enactdomestic legislation and policies addressing internal displacement in their country. In presentingadvice on how to shape laws and policies addressing the protection and assistance needs o internally displaced persons (IDPs) and ensuring their rights, the manual draws on two key sources1:

1. the rules o international human rights law and international humanitarian law, as refected in theUN Guiding Principles on Internal Displacement (hereina ter Guiding Principles) (see annex 1 orthe ull text)

2. an increasing body o IDP-speci c laws and policies already enacted and implemented by nationalauthorities in countries o every region in the world

As the Guiding Principles underline, it is not the international community but national authorities thathave the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction (Principle 3(1)). The manual aspires to recognize the e ortsmade by national authorities in many countries to assist and protect IDPs, to highlight laws and policiesthat have been most compatible with international law norms, and to encourage and assist those in positionso responsibility in other countries a ected by internal displacement to undertake the di cult but crucialtask o drawing up protective laws and policies o their own.

To prevent internal displacement, protect the displaced during displacement, and nd durable solutions orthem once the cause o displacement no longer exists requires no more and no less than respect or humanrights and, in armed confict situations, the protective rules o international humanitarian law. As a result,in some situations the protection o IDPs rights demands the same measures as are necessary to protectthe rights o all citizens, regardless o whether or not they are displaced. For instance, a central means o implementing the right to liberty and security o person is the passage o legislation setting out protectionsagainst arbitrary arrest or detention that are applicable to all citizens, whether or not they are displaced.

However, in many other cases, the act o displacement works against IDPs, creating both physical andadministrative obstacles to the realization o their rights that do not apply to non-displaced citizens.For instance, non-displaced persons are not in need o shelter nor do they have to leave their property behind, risking that it will be taken over by somebody else. Likewise, achievement o the right to politicalparticipation is beyond the reach o IDPs in situations where they can only exercise their right to vote ata place o origin they cannot sa ely return to. It is the technical and legal complexities o addressing suchdisplacement-speci c protection needs that are at the heart o this manual.

1 Due to the technical character o this manual, the acronym IDPs is used throughout the text even though it tends to obscurethe act that those a ected by displacement remain human beings with speci c vulnerabilities and needs a act that is betterrefected by the notion o internally displaced persons.


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This manual is addressed to national policymakers, competent ministries, legislators, and civil society groups concerned with internal displacement in the hope that it will be o direct and concrete assistance incra ting laws and policies that will prevent internal displacement wherever possible and mitigate its e ectson the lives o IDPs worldwide. The manual will also be o use to the Representative o the Secretary General on the Human Rights o Internally Displaced Persons (RSG) and his international partners intheir ongoing e orts to promote e ective national laws and policies to prevent, address, and resolve internaldisplacement.

A. InternAl dIsPlACement And Its ConsequenCes

For the purposes o the Guiding Principles, the term internal displacement describes situations in whichindividuals and groups are (1) orced or obliged to leave and remain away rom their homes, but (2) remain within the borders o their own countries.2 The second element distinguishes them rom re ugees, who arealso involuntarily displaced but across internationally recognized state borders. Internal displacement occurstypically in response to armed confict, persecution, situations o widespread violence, natural and human-made disasters and, more recently, large-scale development projects. However, both the scale o the problemand the nature o the response have become ar more signi cant in the last two decades.

The e ect o internal displacement on IDPs themselves, as well as on the local authorities and communitiesthat host them, can be devastating. While the act o displacement itsel o ten may violate the humanrights o those a ected, the subsequent loss o access to homes, lands, livelihoods, personal documentation,amily members, and social networks can negatively a ect the ability o IDPs to assert and enjoy an entirerange o undamental rights.3 Most obvious, IDPs immediately become dependent on others or basicneeds such as shelter, ood and water. At the same time, their vulnerability may be increased by barriers toaccessing health care, education, employment, economic activities, and electoral politics in their areas o displacement. Moreover, the longer displacement continues, the greater is the risk that traditional amily and social structures break down, leaving IDPs dependent on outside aid and vulnerable to economic andsexual exploitation. Such dependency, in turn, reduces the chances o durable solutions and sustainablereintegration into society once political and security conditions have changed to enable such solutions totake place.

2 Guiding Principles on Internal Displacement, Introduction, paragraph 2.3 Erin Mooney, The Concept o Internal Displacement and the Case or Internally Displaced Persons as a Category o Concern,

Re ugee Survey Quarterly 24, no. 3 (2005): p. 9-26.


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IntroduCtIon


B. InternAtIonAl resPonses And the GuIdInG PrInCIPles

Since the end o the cold war, the UN has acilitated domestic responses to internal displacement through thehumanitarian assistance provided by its specialized agencies but also through the identi cation o the ruleso international law that govern all states responses to displacement.4 The rst RSG, Dr. Francis Deng, wasappointed in 1992 with a mandate to compile international standards composing the normative ramework or addressing internal displacement. The result was the Guiding Principles on Internal Displacement, which

were presented to the UN Commission on Human Rights in 1998. These principles refect and are consistent with international human rights law and international humanitarian law and restate in greater detail guaranteesrelevant or the displaced that are implicit in the more abstract prescriptions o these bodies o law.

Since their promulgation, the Guiding Principles have since been accorded almost universal recognition as thenormative departure point or dealing with displacement. The heads o state and government assembled inSeptember 2005 in New York or the World Summit recognized the principles as an important internationalramework or the protection o internally displaced persons, an endorsement reiterated by the GeneralAssembly on several occasions.5 At the regional level, the 2006 Pact on Security, Stability and Developmentin the Great Lakes Region o A rica includes a protocol obliging signatory states to enact national legislationto incorporate the Guiding Principles in their legal rameworks.6 Other regional organizations includingthe A rican Union, the Organization o American States and the Council o Europe have called upon theirmember states to use the Guiding Principles and incorporate them into their domestic laws and policies.7

As regards the responsibility o states a ected by internal displacement, the Guiding Principles rest on twokey tenets:

1. Sovereignty entails not only the right o each state to conduct its own a airs but also the primary duty and responsibility to provide protection and assistance without discrimination to its population,including the internally displaced, in accordance with international human rights and humanitarianlaw.8

4 These e orts have been strengthened since 2006 with the gradual implementation o a re orm o the humanitarian systemcomposed o three components: (1) creation o a Central Emergency Relie Fund (CERF); (2) improved support or UNresident and humanitarian coordinators; and (3) introduction o the cluster approach by designating clusters with an agency responsible or leading the cluster at the international as well as the country levels and or acting as provider o last resort i noother organizations are available in given situation to undertake necessary cluster activities. The clusters and designated agenciesare nutrition (UNICEF), water and sanitation (UNICEF), health (WHO), shelter in confict or IDPs (UNHCR), campcoordination in confict or IDPs (UNHCR), protection in confict or IDPs (UNHCR), logistics (WFP), telecoms (OCHA/UNICEF/WFP), early recovery (UNDP), and education (UNICEF).

5 See the 2005 World Summit Outcome document (A/RES/60/1), paragraph 132, as well as, or example, A/RES/62/153(2007),paragraph 10, and A/HRC/RES/6/32 (2007), paragraph 5.

6 International Con erence o the Great Lakes Region, Protocol on the Protection and Assistance to Internally Displaced Persons(30 November 2006), Article 6.3. See (www.icglr.org/).

7 In 1999 the Commission o the Organization o A rican Unity (OAU), now reconstituted as the A rican Union (AU), ormally acknowledged and expressed appreciation or the Guiding Principles. The AU is presently (in 2008) in the process o dra ting abinding convention on internal displacement in A rica. See also Organization o American States, General Assembly Resolution2277 (2007) and Council o Europe Recommendation 6 (2006) o the Committee o Ministers to member states on internally displaced persons.

8 Guiding Principle 3.1.


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2. While those displaced within their own country remain entitled to the ull protection o rightsavailable to the population in general, displacement gives rise to particular vulnerabilities on thepart o those a ected. There ore, and in order to ensure that the displaced are not deprived o theirhuman rights, states are obligated to provide special measures o protection and assistance to IDPsthat correspond to these vulnerabilities in order to ensure that IDPs are treated equally with respectto non-displaced citizens.9

The Guiding Principles describe in detail the guarantees available to internally displaced persons that mustbe provided both in order to prevent arbitrary displacement and to mitigate and end it when it occurs. They cover all phases o displacement, including measures o protection against being displaced, protectionduring displacement, and rights relevant in the post-displacement phase when return or other durablesolutions become possible. In addition, the Guiding Principles set out standards pertaining to the delivery o humanitarian assistance.

The Guiding Principles are grounded in existing human rights and humanitarian law standards. Thus,they refect existing rules and clari y how they apply to internal displacement settings, instead o creatingnew obligations.10 This approach has acilitated rapid international acceptance o the Guiding Principles,as refected in their increasingly common application in the domestic order o displacement-a ectedcountries.

C. nAtIonAl And reGIonAl resPonses: lAWs And PolICIes

One o the most encouraging signs o international acceptance o the Guiding Principles on InternalDisplacement has been the proposal, adoption, and implementation o numerous laws, policies, and decreesaddressing internal displacement in all regions o the world. Almost twenty countries have enacted lawsand policies explicitly based on the Guiding Principles to date, while other countries have acted to regulatespeci c problems related to displacement in a manner consistent with their international obligations withoutnecessarily re erencing the Guiding Principles.11

These developments refect a growing realization that internal displacement must be addressed at thenational level, both as a matter o legal obligation and national interest. However, both the complexity o the international legal standards refected in the principles and the range o domestic legislative and policy issues they must be applied to present signi cant obstacles to exercising national responsibility. By bringing

9 Guiding Principles 1.1 and 4.10 The provisions o international human rights and humanitarian law providing the normative basis o each o the principles are

described in Walter Klin,Guiding Principles on Internal Displacement: Annotations,2nd ed., Studies in Transnational LegalPolicy 38 (American Society o International Law and Brookings Institution, 2008) (www.asil.org/pd s/stlp.pd ).

11 For a compilation o national laws and policies on internal displacement, see (www.brookings.edu/projects/idp/Laws-and-Policies/idp_policies_index.aspx). For a searchable database, see (www.idpguidingprinciples.org).


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IntroduCtIon

together legal analysis with examples o domestic practice, it is hoped that this manual will address theseobstacles and assist all states experiencing internal displacement to resolve it in a manner consistent withboth their international obligations and the interests and aspirations o those displaced.

d. sCoPe oF the mAnuAl

The central aim o this manual is to provide guidance to those who are charged with researching, dra ting,and commenting on domestic laws and policies addressing internal displacement. The need or normativerameworks addressing internal displacement exists not only in countries experiencing widespread violenceor armed confict but also those acing displacement by natural or man-made disasters, that is, potentially allcountries. This is why states should consider preparing IDP laws and policies even in the absence o actualdisplacement.

The manual ocuses on displacement caused by armed confict and other situations o violence as well asdisaster-induced displacement. Displacement and relocations triggered by development projects usually require speci c responses that are di erent rom these humanitarian situations, although they too can causehuman su ering. This is why development-induced displacement, while mentioned where appropriate, isnot a ocus o this manual

While the guidance in this manual will need to be applied in accordance with the domestic legal order anddra ting traditions o the countries where it is used, it should serve to provide speci c guidance on approachesthat laws and policies can take in order to structure responses to internal displacement that comply withrelevant international law principles. The manual addresses comprehensively the speci c protection needso internally displaced persons during all phases o displacement, and thus it goes beyond issues linked tohumanitarian assistance during the emergency phase o internal displacement.

While the manual is primarily meant as a tool or o cials in ministries dealing with internal displacement,it may also assist members o parliament or ministries in charge o implementing activities dealing withinternal displacement and thus help acilitate the implementation o laws and policies at the operationallevel. Nevertheless, much o its analysis and in ormation may also assist these actors in shaping theirdecisions and actions.

e. hoW to use thIs mAnuAl

In keeping with its central aim o assisting persons charged with dra ting legislative and policy responses tointernal displacement, the bulk o this manual ocuses on a key set o protection issues that arise in situations where internal displacement has already occurred. Thus, while chapter 3 provides general advice on stepsthat can be taken prior to displacement in order to prevent or mitigate it, the core chapters in part III o themanual (chapters 4 through 16) ocus on speci c measures to be takenduring the time people are displaced inorder to address protection needs as well as to acilitatedurable solutions that would end their displacement.


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Although chapter 5 on movement-related rights is most inherently related to the achievement o durablesolutions, each o the other chapters includes important considerations that should be taken into account.

The manual does not contain a model IDP law or model IDP policy or several reasons. First, legislativetraditions are too diverse to allow or a ormat that would do justice to this diversity. Second, IDP laws andpolicies should be written in a way that addresses the speci c problems aced by IDPs in a given situationand ocus on those issues that are o particular importance. Finally, such laws and policies should be theoutcome o an inclusive process o analysis and assessment that involves all relevant stakeholders and is, interalia, based on consultations with IDPs. Such an approach is incompatible with simply copying a model.

In this sense, the manual is based on a checklist approach identi ying relevant questions and issues ratherthan lists o necessary content o provisions. However, each chapter contains alist o minimum essential elements o state regulation,that is, points that, at a minimum and regardless o available resources, shouldbe part o IDP laws and policies.12 These lists are summarized in annex 3. They may serve as points o departure or legal dra ters, but in virtually all cases, it will be necessary to go beyond them in accordance with identi ed needs.

The manual may be used in a number o ways:

u For identi cation o relevant issues and guidance on preventing or mitigating displacement in theuture, see part II, chapter 3.

u For identi cation o relevant issues and guidance on responding to an imminent or un oldingdisplacement crisis, the chapters in part III, taken together, provide an overview o the mostimportant issues requiring regulatory action in order to assist and protect those a ected.

u For identi cation o relevant issues and guidance on regulatory responses to particular protectionissues in the context o protracted displacement or durable solutions, the individual chapters in partIII may be consulted in detail.

Each o the core chapters should be read in conjunction with chapters 1 and 2, which set out generalconsiderations on national responses to internal displacement that cross-cut all the topics covered in partIII o the manual.

The core chapters in parts II and III o the manual are organized roughly in the order that their subjectmatter arises in the text o the Guiding Principles themselves. In order to provide a more complete overview o how the manuals recommendations correspond to the Guiding Principles, annex 2 summarizes eachprovision o the Guiding Principles and identi es any corresponding recommendations in the manual.

12 The list o minimum essential elements o state regulation or chapters 1 and 2 can be ound at the end o chapter 2.


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F. struCture oF the ChAPters

The thirteen core chapters in part III o the manual address protection needs that are discrete in the senseo corresponding to speci c sectors o humanitarian assistance (in particular, chapters 4 to 8) and speci ccategories o recognized human rights. However, many o these issues are interlinked, and respect or oneset o rights may be a precondition or the realization o many others. The best example may be the needor personal and identity documentation (chapter 11), without which crucial rights such as education andpolitical participation may be unrealizable in displacement settings. Such linkages have been highlighted with cross-re erences throughout the text.

The structure o the core chapters in part III is meant to acilitate rapid identi cation o potential problemsas well as possible regulatory responses. Each core chapter is composed o the ollowing subsections:

u I c i : This section identi es and briefy describes the relevant provisions o the GuidingPrinciples or each chapter topic.

u l ga f a i : This section summarizes the relevant minimum standards set out ininternational law or treatment o each topic, citing the most important international treaties andstandards. In order to keep this section short, only the most important legal standards are re erenced.More detailed in ormation can be ound in the annotations to the Guiding Principles.13

u r g a f a w k: This section generalizes about how the topic at hand tends to beregulated in domestic law, noting patterns or trends regarding both the manner in which relevanttopics are regulated ( or example, distinguishing those that tend to be covered in a single code, suchas an electoral law, rom those that might be the subject o multiple laws and regulations) and thelevel o government at which such regulation occurs ( or example, how competences tend to bedistributed between the central and regional or local levels).

u P b f c b IdP : This section draws out the speci c protectionimplications o displacement or the topic at hand, noting both general concerns and particularrisks aced by vulnerable groups within internally displaced populations.

u C ck i : i b a b ic aw a p ici : This checklist providesan overview o the key objectives that laws and policies on internal displacement should aim toachieve with regard to the relevant topic. It begins with a set o minimum essential elements o state

regulationthat refect the hard core o what arguably are a states obligations under international law or are necessary to achieve adequate protection o and assistance or IDPs, and thus they have tobe given e ect even in situations where the resources or capacity do not exist to implement othermeasures recommended in the chapters.

13 Klin,Guiding Principles on Internal Displacement: Annotations.

IntroduCtIon


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u n c a f a g a i : This section provides more detailed guidanceregarding how the objectives set out in the checklist should be achieved. In doing so, it providesrecommendations or dra ters as well as examples o human rights-compatible provisions adoptedin existing national laws and policies whenever possible. Where relevant, this section also presentsinternational standards and best practice guidelines. The structure o this section is roughly chronological, beginning with issues to ocus on during the emergency or early stages o displacementand typically ending with guidance related to the acilitation o durable solutions.

The annexes acilitate the use o the manual by providing the ull text o the Guiding Principles on InternalDisplacement (annex 1), an index linking each o the Guiding Principles to the corresponding chapters o the manual (annex 2), a consolidated list o minimum core contents o IDP laws and policies (annex 3), anda list o urther readings and resources (annex 4).

The use o examples rom existing IDP laws and policies is meant to allow uture dra ters to bene t rom theexperience o the small but growing number o countries that have already sought to address the relatively un amiliar and complicated issues o regulating internal displacement. However, these examples should alsobe taken with a note o caution. The provisions presented as examples should not be taken as models thatcan simply be transplanted into other laws without due regard or the legal ramework and political andsocioeconomic context o the country concerned. They simply represent one way o approaching a particularproblem. Moreover, the inclusion o text rom existing IDP laws and policies does not guarantee that (1) thelaw or policy in question, taken as a whole, is compatible with the Guiding Principles and compliant withinternational law; (2) the law or policy in question has been ully or satis actorily implemented; or (3) thelaw or policy remains in orce in the orm in which it is presented.


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PART

GeneralConsiderations

C ap 1 a 2 should be read in conjunction with each o the chapters in

parts II and III o this manual, as they set out a number o issues relevant to all o

them. C ap 1 addresses a series o cross-cutting issues arising as a direct

result o the central obligations embodied in international human rights and

humanitarian law and underlying the Guiding Principles. C ap 2 ocuses

on actors requiring attention at the domestic level in order to ensure that both

the dra ting and the implementation o IDP laws and policies oster an e ective

national response to internal displacement.


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Chapt r 1

Th G iding Principland H man Right Ba d Prot ction

A undamental tenet underlying the Guiding Principles on Internal Displacement is that the state obligationto protect and assist the internally displaced is based on existing international law, including settled rules o international human rights law and, in situations o armed confict, international humanitarian law.

Human rights law sets out basic standards o protection each state owes to all citizens and persons livingunder its jurisdiction. These obligations go beyond the protection o li e and physical security to encompass well-established and interrelated categories o civil, political, economic, social, and cultural rights (includingthose discussed in this manual). State authorities are required torespect these rights by not inter ering withtheir exercise; to protect them by preventing oreseeable violations by private parties; and to ul ll themthrough positive measures acilitating their exercise. In cases in which states ail to meet these obligations,they are required to provide e ective remedies that serve to rehabilitate those adversely a ected, guaranteethat such violations will not recur, and hold accountable those responsible.

1. National authorities have the primary duty and responsibility to provide protection and humanitarian

assistance to internally displaced persons within their jurisdiction.[...]

Principl 3

By identi ying these legal obligations and clari ying their relevance or IDPs, the Guiding Principlesunderscore the primary duty and responsibility borne by all states with regard to their own internally displacedcitizens and habitual residents. Addressing internal displacement is, in other words, a matter o applying ruleso international human rights and humanitarian law in a national context to persons who are placed in a vulnerable position by their displacement but do not lose their rights as a result. This principle o the primary responsibility o national actors has a number o speci c implications or states, discussed below.

A. deFInInG InternAlly dIsPlACed Persons

There is no legal de nition o who constitutes an internally displaced person in international law. Thenotion o IDPs set out in the introduction to the Guiding Principles is meant to be descriptive rather thannormative, drawing attention to the characteristics o IDPs that make them inherently vulnerable.14 Thisnotion has gained authority and is commonly used at the international level.



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2. For the purposes o these Principles, internally displaced persons are persons or groups o persons who have been orced or obliged to fee or to leave their homes or places o habitual residence, inparticular as a result o or in order to avoid the e ects o armed confict, situations o generalized violence, violations o human rights, or natural or human-made disasters and who have not crossedan internationally recognized State border.

Introd ction to th G iding Principl

Two elements are decisive in identi ying who is an IDP: (1) thecoercive or otherwise involuntary charactero movementthat is, movement caused by armed confict, violence, disasters, and the like; and (2) the actthat such movement takes placewithin national borders . The second requirement is to be understood in abroad sense. It re ers to the place where the displaced persons nd re uge, and it also is met i , or example,displaced persons have to transit through the territory o a neighboring state in order to gain access to a sa e

part o their own country; rst go abroad and then return (voluntarily or involuntarily) to their own country but cannot go back to their home or place o origin or habitual residence or reasons indicated in paragraph2 o the Guiding Principles; or le t voluntarily to another part o their country but cannot return to theirhomes because o events that occurred during their absence that make return impossible or unreasonable.

Notion o IDP in Az rbaijan, Bo nia-H rz govina, and N pal

In order to cover persons who have transited through a neighboring country when eeing or frst soughtre uge abroad be ore returning to their country o origin, some countries do not re er to border crossing but

simply require that the displaced person be within the territory o the country15

or living somewhere elsein the country 16.

CAse sTuDy

It is signi cant that the Guiding Principles do not re er to the notion o citizenship, thus indicating thatoreigners may also quali y as internally displaced persons. Re erence to homes or places o habitualresidence, however, indicates that their presence in the country concerned cannot be o just a passing naturebut must have reached some permanency. Thus, the ollowing categories o persons quali y as IDPs:

Internally displaced citizens o the country concerned

Former re ugees who have returned to their country o origin but are unable to return to theirormer homes or nd another durable solution through social and economic integration in anotherpart o the country

15 Law o the Republic o Azerbaijan on Status o Re ugees and Forcibly Displaced Persons (Persons Displaced within theCountry) o 21 May 1999, Article 1; Law on Re ugees rom Bosnia and Herzegovina and Displaced Persons in Bosnia andHerzegovina (1999), Article 4.

16 Nepal National Policies on Internally Displaced Persons, 2063 (2007), Article 3 (a).


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PArt I: Gen erAl ConsIderAtIonsC ap 1: The Guiding Principles and Human RightsBased Protection


Displaced stateless persons who have their habitual residence in the country concerned

Displaced nationals o another country who have lived there or a long time (maybe even generations)

and have largely lost contact with their country o nationality Displaced nationals o another country who have their habitual residence in the country concerned

because they been admitted permanently or or prolonged periods o time.

IDPs who are non-citizens, however, are not automatically entitled to rights mentioned in the GuidingPrinciples that may be speci cally reserved to citizens under applicable international law, such as the rightto vote and to participate in governmental and public a airs (Principle 22(d)).

Re ugees displaced in their country o re uge or asylum remain re ugees, but it would be appropriate toapply the Guiding Principles by analogy to the extent that applicable re ugee law does not address theirdisplacement-related needs. Similarly, displaced migrants with short-term permits or in irregular situationsremain migrants, with lesser rights than those accorded to the permanent population o the country.However, as long as they have not le t the country concerned, their rights as migrants must be respected. To the extent that these norms do not address their displacement-related needs or humanitarian assistanceand protection, the Guiding Principles may be applied by analogy.

B. InternAl dIsPlACement Is not A leGAl stAtus:reGIstrAtIon vs. stAtus determInAtIon

Unlike re ugees, IDPs remain citizens or habitual residents o their country and are entitled to protectionand assistance on that basis alone.17 They can invoke their right to protection under the rights listed in theGuiding Principles and contained in relevant international conventions because they are displaced and thushave speci c needs, not because they are registered or ormally recognized as IDPs. States there ore shouldnot create a system whereby IDPs can enjoy their rights only a ter having been granted a legal status thatcould also be re used or revoked. From the perspective o international law, displacement is a actual statethat triggers certain legal consequences,18 and unlike in re ugee law,19 there is nothing like an IDP statusthat can be enjoyed only a ter it has been ormally granted to an individual.

Nevertheless, it o ten is necessary to be able to identi y who the displaced are. In many countries, individualregistration serves the purpose o identi ying IDPs. Registration o IDPs may be administratively use ul oreven necessary or a number o reasons. Such procedures can allow authorities to improve their response by:

17 The rights o displaced citizens o another country must be respected, but they may be more limited in scope than those o naturalized citizens, in accordance with international law; or instance, non-citizens typically do not enjoy the right to vote innational elections.

18 The same is true or other international instruments. For instance, the Convention on the Rights o the Child and the FourthGeneva Convention relative to the Protection o Civilian Persons in Time o War apply to persons less than 18 years old andnon-combatants automatically and without creating a distinct legal status or children and members o the civilian population. This does not rule out the necessity o determining whether a particular individual ul ls relevant criteria in cases o doubt.

19 In re ugee law, granting o re ugee status is necessary because without it re ugees would just be aliens, without speci c rights.


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14

establishing the number, location, and key demographic characteristics o displaced populations;

preventing raudulent access to scarce humanitarian assistance by persons who do not need it; and

acilitating the issuance o temporary identity cards to replace personal documentation lost in thecourse o fight (procedures or registering IDPs are discussed in chapter 11).

However, registration procedures should always be tied to speci c and concrete goals, meaning that displacedpersons should be registered not as IDPs per se but rather as IDPs entitled to receive speci c bene ts. Thus, it may be necessary to register recipients o bene ts such as ood assistance, medical care, waiver o school ees, or entitlement to stay in a camp. By contrast, it may not be necessary to register all IDPs whoare not dependent on humanitarian assistance. Here, alternatives to registration, such as the pro ling o displacement situations (see chapter 2, section C), may be considered.

For the reasons mentioned, registration should not become the basis or creating a new legal category o persons with IDP status. Nevertheless, some states have adopted procedures in response to displacementthat have gone beyond simply registering IDPs and instead include status determination procedures similarto those used to recognize oreign re ugees. Overly bureaucratic registration procedures or the creation o a legal IDP status are not only unnecessary but also raise signi cant protection concerns, including theollowing:

I humanitarian aid eligibility is entirely contingent on status determination, that may lead tobureaucratic delays in its distribution to displaced populations with urgent humanitarian needsbecause they have to await o cial recognition as IDPs.

National IDP de nitions or their application in practice may be narrower than the description

in the Guiding Principles; or example, they may exclude persons displaced by military actionso certain armed groups but not others or as a result o disaster but not confict. That may resultin unequal treatment o people in equal need, e ectively depriving them o their rights underinternational human rights and humanitarian law.

I IDPs are located in isolated areas, they may be unable to register and thus ormally ineligible orassistance.

IDPs who are especially marginalized or traumatized by their experiences may wish to avoid contact with the authorities or may be reluctant to provide personal in ormation.

I bene ts beyond those initially envisioned depend on IDP status, that would arbitrarily deny IDPs access to those bene ts in cases in which they did not originally register, such as when rightsrelated to property restitution later become available to those who registered or IDP status initially related to ood distribution.

In cases in which the registration o IDPs and/or issuance o IDP cards are deemed administratively necessary, the name and other identi ying eatures o the bearer should appear on the card in order to avoidabuses or raudulent sale o the card. The issuance o IDP cards should be based on speedy, acilitatedprocedures that incorporate the ollowing eatures:


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Registration processes should be non-discriminatory, open, air, and transparent, with clear criteriaor applications and timelines or decisions;

Criteria or registration should be no more restrictive than the descriptive elements set out in theGuiding Principles and should not be limited to speci c times or places to ensure that any urtherinternal displacement ( or example, displacement o communities in another part o the country orsecondary displacement o IDPs who cannot nd security where they were rst displaced to) can beaddressed without setting up a new mechanism;

The decision-making process should be swi t, particularly when registration is a prerequisite oraid, while providing a ull opportunity to claimants to demonstrate eligibility. Speci cally, allrelevant evidence or in ormation brought by claimants should be considered and appeals o negativedecisions allowed.

Generally speaking, by ocusing on speci c registration processes (such as voting drives or registration orshelter, ood assistance, and so orth) rather than creation o a catch-all IDP status, competent authoritiescan minimize the risk o preventing displaced persons in genuine need rom obtaining bene ts.

Combining vot r id nti cation and civil r gi tration in Ko ovo

The 2000 Municipal Election Program in Kosovo included a nationwide civil registration program that servedas the basis or voter registration. According to the electoral ramework only habitual residents couldvote, provided that they could prove residence in Kosovo on or be ore January 1, 1998 (that is, prior to theescalation o hostilities that culminated in NATOs 1999 military intervention). Since many Kosovars had lost

or been stripped o their documents during the con ict and many municipal records lost or destroyed, theregulations governing civil registration allowed an exceptionally wide array o documents to prove eligibility(including utility bills, student ID cards, and membership in various Yugoslav clubs and associations).

The United Nations Mission in Kosovo (UNMIK) and OSCE established a Joint Registration Task Force (JRT)to administer the civil registration. Persons lacking documents flled in detailed questionnaires regardingtheir claim to eligibility, which were orwarded to their municipalities o origin or verifcation. As the volumeo claims rose, the JRT established a second-level inquiry division, which was initially designed to combatraud through random sampling o civil registration applications. 20 However, as the caseload o undocumentedregistrants grew, the inquiry division became the primary mechanism through which applicants who couldnot be identifed through the review procedure would be provided one fnal opportunity to have their status

verifed. Ultimately, the review and inquiry divisions processed some 113,000 cases, approving the vastmajority.21

CAse sTuDy

20 OSCE Inquiry Division, Final Report, (October 2000), p.3 unpublished.21 Ibid.


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16

C. non-dIsCrImInAtIon And equAlIty vis--visnon-dIsPlACed CItIzens

Given that IDPs rights derive rom the act that they remain in their own country, how should theirrights with regard to the non-displaced population be de ned? As set out above, IDPs su er rom distinct vulnerabilities as a direct result o being displaced, and the ailure o the state to address those vulnerabilitiesthrough positive measures in the orm o speci c protection and assistance could lead to situations in whichIDPs were discriminated against in relation to others. Non-discrimination and equality be ore the law areamong the most important rights in addressing internal displacement.

1. Internally displaced persons shall enjoy, in ull equality, the same rights and reedoms underinternational and domestic law as do other persons in their country. They shall not be discriminatedagainst in the enjoyment o any rights and reedoms on the ground that they are internally displaced.[...]

1. Internally displaced persons who have returned to their homes or places o habitual residence or who have resettled in another part o the country shall not be discriminated against as a result o their having been displaced [].

Principl 1

Principl 29

Discrimination against IDPs is most obvious in cases in which laws, policies, or o cial practices explicitly single out IDPs or less avorable treatment than others. That may refect assumptions that the displacedsympathize with particular armed actions in a confict. In other cases, such policies may refect preconceivednotions about how the displacement should end or instance, when IDPs are inde nitely orbidden romtaking any steps that might conceivably lead to local integration or make return to their homes less likely.

However, discrimination may also result rom situations in which laws or policies that are unproblematicin normal settings impose undue burdens on IDPs, restricting the exercise o their rights. For instance,such problems can arise where rules continue to be applied that tie the exercise o certain rights (suchas voting or school enrolment) to registered residence in a particular place. Such rules are o ten a matter

o simple administrative convenience, but they can add to the vulnerability o IDPs when they ail toanticipate displacement by providing or exceptions or special measures that allow IDPs to easily re-registertheir residence or bypass such requirements. Even though such orms o di erential treatment are entirely unintentional, they must be addressed in order to avoid discrimination against those a ected.

At a broader level, the principle o equal treatment is undamental to the approach to displacement taken inthe Guiding Principles. That approach is based on the observation that displacement consistently results inspeci c, severe vulnerabilities and harms or those a ected, such as the loss o homes, livelihoods, and social


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networks. As a result, in order to place IDPs back on an even ooting with the non-displaced population,the state should provide speci c and targeted measures o assistance and protection o a nature and scopecorresponding to the needs and vulnerabilities resulting rom displacement. This approach is supportedby numerous rules o international human rights law that prescribe positive or special measures in avor o vulnerable groups.22 Although such measures result in di erential treatment, they arenot prohibited as beingdiscriminatory; rather, they are required by the basic principle that what is di erent must be treated di erently,as long as they respond to genuine vulnerabilities and do not last longer than necessary to address them.

Discrimination may also work against non-displaced communities. That may happen when the level or typeo protection and assistance provided to IDPs provides them with a standard o com ort noticeably higherthan that o surrounding communities that have similar or even greater needs than the IDPs. Populationsthat host displaced groups o ten do so at signi cant cost to themselves and should be consulted on measuresproposed to assist IDPs in order to ensure that those measures bene t all concerned. For instance, whenIDPs are temporarily sheltered in important public buildings such as schools, consultations with hostcommunities may acilitate the rapid resumption o classes through prioritized provision o alternative shelter.In such situations, instead o ocusing solely on IDPs competent authorities should consider addressing theneeds o displacement-a ected communities that is, not only the displaced but also host communities andcommunities receiving returning or relocated IDPsto the extent that those needs are a consequence o the orced movement taking place.

d. non-dIsCrImInAtIon WIthIn dIsPlACed PoPulAtIons AndProteCtIon oF vulnerABle GrouPs

The same principles o non-discrimination that govern states treatment o IDPsvis--vis the non-displacedpopulation also hold within IDP populations. Internally displaced populations are typically diverse, and it isimportant to ensure that some segments do not arbitrarily receive worse treatment than others. Factors thatcan give rise to di erential treatment within displaced populations include the ollowing:

Cause o displacement: In situations in which displacement has been caused by multiple actors, it isnecessary to ensure that the particular vulnerabilities and risks aced by each group are understoodand that all receive equal treatment. For instance, when armed confict and natural disasters haveled to parallel waves o displacement, it is crucial to ensure that those displaced by ghting donot receive worse treatment or instance, because they are presumed to support an insurgency movement.

Location o displacement: IDP populations concentrated in collective shelter settings, such as camps,may bene t rom their accessibility. Dissemination o in ormation, consultation, and distribution o humanitarian aid are simply easier in such settings. However, when signi cant additional groups o IDPs live dispersed among the general population, they should be entitled to a level o protectionand assistance equal to their speci c needs.

22 See CERD, Articles 1(4) and 2(2); CEDAW, Article 4; ILO Convention 111 (1958) on Discrimination, Article 5; LimburgPrinciples on the Implementation o the CESCR (1986), paragraph 39.


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18

Inherent vulnerability: Within IDP populations, certain groups are inherently more vulnerable tothe risks posed by displacement than others. As a result, it is necessary to identi y such groups andtake measures to address their vulnerability.

1. These Principles shall be applied without discrimination o any kind, such as race, colour, sex,language, religion or belie , political or other opinion, national, ethnic or social origin, legal or socialstatus, age, disability, property, birth, or on any other similar criteria.

2. Certain internally displaced persons, such as children, especially unaccompanied minors, expectantmothers, mothers with young children, emale heads o household, persons with disabilities andelderly persons, shall be entitled to protection and assistance required by their condition and totreatment which takes into account their special needs.

Principl 4

Attention to the protection needs o inherently vulnerable groups should be an absolute priority in any internal displacement situation. Unlike other groups a ected by actors that might lead to discrimination within a displaced population, groups with inherent vulnerabilities are likely to be present among any population o displaced persons. Some o the groups that raise the greatest concern include

single parents, particularly women-headed households;

unaccompanied women;

minors, especially when unaccompanied;

older persons, especially when unaccompanied or otherwise without amily support;

persons with disabilities, chronic illnesses, or HIV/AIDS;

traumatized persons;

pregnant or lactating women;

members o ethnic or religious minorities;

indigenous peoples.

Women and children constitute the overwhelming majority o IDP populations worldwide, but many amongthem also are consistently among the most vulnerable components o displaced populations. Women o tenace discrimination and are highly vulnerable to sexual violence and exploitation (see section E, below).Displaced children ace immediate threats o sexual or economic exploitation and recruitment, as well as thelonger-term risk entailed in the interruption o their education and breakdown o social structures meant toprotect them and oster their development.

Persons with disabilities, chronic illnesses, or HIV/AIDS, as well as pregnant or lactating women andthe elderly, o ten have extra needs with respect to diet, water consumption, and medical treatment and


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may be too immobilized to move to sa er places or to use collective cooking, washing, or toilet acilities. Traumatized persons may not be able to cope with the challenges o li e in displacement settings unless they get appropriate treatment. Finally, members o ethnic and religious minorities and indigenous peoples may speak only minority languages or may su er discrimination rom both the host community and other IDPs.Such groups o ten are especially liable to impoverishment and dependency in situations in which protracteddisplacement results in the breakdown o traditional social structures, norms, and livelihoods.

e. Gender equAlIty And dIsPlACement

Laws and policies to protect and assist internally displaced persons should recognize particular vulnerabilitiesrelated to gender. In many situations, the physical security o both men and women is a concern, albeit or varying reasons. Women are vulnerable to sexual assault and rape both during and a ter displacement. Tooo ten, they ace sexual violence in the camps, which are typically crowded and insecure. Moreover, domestic violence o ten is higher during displacement. Women and children may encounter physical abuse rom maleamily members in the camps or temporary homes as a result o tension, uncertainty about the uture, andthe breakdown o traditional norms and sanctions. Understanding the particular vulnerabilities experiencedby women is an essential rst step in ensuring that displaced women are protected. While women and girlsare the large majority o victims in reported cases o sexual violence, it is also important to consider theparticular vulnerabilities o young men, who may be sexually assaulted or disproportionately targeted ororced recruitment into militias. The way in which the authorities respond to reports o sexual and gender-based violence may either deter or encourage continued violence.

Gender should also be taken into account in setting up systems or the provision o humanitarian assistance,such as ood, health care, and other relie supplies (see chapters 4 and 710). Registration o the displacedor bene ts such as ood o ten is done through male heads o household, who then are given assistance,goods, and services on the assumption that they will provide or their amilies. That means that womenheads o households may encounter di culties receiving assistance; moreover, experience has shown that aiddistributed to male heads o household does not always bene t their amilies. In act, many humanitarianorganizations distribute ood and relie to women, who more reliably ensure that their amilies, particularly vulnerable groups such as children and the elderly, are ed. In some cases, the distribution o ood is used tocoerce emale bene ciaries into engaging in sexual acts. When ood and relie is inadequate, women may leave camps alone to secure ood or income and may be more vulnerable to violence by local militias orpolice or military orces.

Reproductive health care may not adequately take into account womens needs (see chapter 10). Theimportance o access to obstetric and gynecological care o ten is underestimated, especially or women whoare pregnant or nursing or who have recently given birth.

Displaced men and women o ten ace di erent obstacles when attempting to access local labor markets(see chapter 13). Both women and men may struggle to nd suitable jobs, particularly when traditionallivelihoods are destroyed. In urban areas, women o ten nd it easier to nd jobs as domestic workersthan do men seeking employment in the in ormal sector, which can a ect gender roles within the amily.


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20

In situations in which it is socially unacceptable or women to work outside the home, women heads o household may have no way to support their amilies and may be especially vulnerable.

Solutions to displacement should be based on the voluntary and in ormed consent o all IDPs, but o tendecisions are made by the male head o household, even though there may be di erent views within theamily. Moreover, or those returning to their communities o origin, resolution o land and property disputes continues to be strongly a ected by the gender o the person making a claim, and women whohave lost a spouse are especially vulnerable to discrimination (see chapter 12). In statutory land tenuresystems, property deeds o ten are issued in the name o the male head o household making it di cult or widows or orphans to claim their traditional land and property. Customary systems o ten also limit womensinheritance and usage rights.

2. Certain internally displaced persons, such as children, especially unaccompanied minors, expectant

mothers, mothers with young children, emale heads o household, persons with disabilities andelderly persons, shall be entitled to protection and assistance required by their condition and totreatment which takes into account their special needs.

Principl 4

3. I displacement occurs in situations other than during the emergency stages o armed conficts and

disasters, the ollowing guarantees shall be complied with:(d) The authorities concerned shall endeavour to involve those a ected, particularly women, in the

planning and management o their relocation;

3. Special e orts should be made to ensure the ull participation o women in the planning and

distribution o these basic supplies.

2. Special attention should be paid to the health needs o women, including access to emale healthcare providers and services, such as reproductive health care, as well as appropriate counselling or victims o sexual and other abuses.

Principl 7

Principl 18

Principl 19


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3. Women and men shall have equal rights to obtain such necessary documents and shall have the

right to have such documentation issued in their own names.

3. Special e orts should be made to ensure the ull and equal participation o women and girls in

educational programmes4. Education and training acilities shall be made available to internally displaced persons, in particular

adolescents and women, whether or not living in camps, as soon as conditions permit

Principl 20

Principl 23

Being aware o the gender di erences in displacement is important in reviewing laws and policies to ensurethat they do not, intentionally or unintentionally, result in discriminatory treatment. It has sometimesbeen the case that the extent to which laws discriminate against women or children was recognized only insituations o large-scale displacement. Establishing mechanisms or reporting such discrimination and ortaking measures to remedy the discriminatory impact o laws and policies can bene t not only the displacedbut also the population at large.


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Chapt r 2

Fram work or National R pon ibilit

As set out in Guiding Principle 3, national authorities have the primary duty and responsibility to provideprotection and assistance to IDPs. What are governments expected to do in order to ully comply withthat obligation? In order to assist them, the Brookings InstitutionUniversity o Bern Project on InternalDisplacement (BrookingsBern Project) developed a Framework or National Responsibility in 2005 toprovide states with concrete benchmarks or addressing displacement.23 The Framework set out twelvebroad areas in which states can directly contribute to the mitigation and resolution o displacement. Thissection o the manual elaborates on each o those benchmarks in providing speci c guidance relevant to thedra ting o laws and policies.

A. PreventIon

One undamental step that states can take to exercise their responsibility with regard to internal displacementis to take steps to prevent it. Such measures should ocus on both preventing unnecessary displacementand, when displacement is unavoidable, taking steps in advance to mitigate its harm ul e ects. As set out

in Guiding Principle 5, the most important actor in preventing displacement is to accord ull respect tointernational law, in particular human rights and humanitarian lawan undertaking that goes beyond thedra ting o laws and policies and has implications or all branches o government.

All authorities and international actors shall respect and ensure respect or their obligations underinternational law, including human rights and humanitarian law, in all circumstances, so as to preventand avoid conditions that might lead to displacement o persons.

Principl 5

Concrete steps to prevent and mitigate displacement should include a review o relevant national laws

and policies to ensure that they incorporate basic international law protections as set out in the GuidingPrinciples ( or more details see chapter 3).

23 The Brookings InstitutionUniversity o Bern Project on Internal Displacement, Addressing Internal Displacement: AFramework or National Responsibility (April 2005) (www.brookings.edu/projects/idp/20050401_nr ramework.aspx).


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24

earl warning m chani m

In Colombia, Article 8 o Law No. 387 devolves the main responsibility or preventing and responding toorced displacement to the municipalities. At the national level, the early warning system ( sistema de alertatemprana, or SAT) is the main instrument to prevent displacement. Representatives o the OmbudsmansO fce closely monitor the situation o civilians in fve key areas in Colombia and create reports analyzing therisks that the civilians may ace because o military movements, possible armed hostilities, and other actors.Those reports are transmitted by the Ombudsmans O fce in Bogot to an Interministerial Committee orEarly Warning (Comit interministerial para la alerta temprana, or CIAT), which is chaired by the Ministryo Interior and composed o representatives o the Ministry o De ence, the Vice-Presidency, the Army, theOperational Directorate o the National Police, the Security Police (DAS), and Accin social . Based on thereports and other in ormation available to it, CIAT decides to issue an early warning, thus reeing budgetaryand other resources in order to respond preventively to specifc threats. Measures taken can range rom thedistribution o cell phones to threatened community leaders to the deployment o military troops. 24

In the Democratic Republic o Congo (DRC), troops o the UN peace-keeping mission (MONUC) canbe deployed to areas where communities eel threatened by displacement. Such interventions o ten aretriggered by the Protection Cluster set up by the UN, which comprises key humanitarian agencies and NGOsand is entrusted with identi ying and addressing protection needs related to internal displacement. 25

CAse sTuDy

B. nAtIonAl AWAreness

Raising awareness o the existence and nature o internal displacement among all relevant stakeholdersand o the steps necessary to address it is an important precondition or the implementation o laws andpolicies on internal displacement. As set out in the Framework or National Responsibility, sensitizationor awareness-raising campaigns can help promote national solidarity with the displaced and counteract thestigma associated with displacement. National awareness is especially important in the context o IDP lawsand policies, which o ten may be required to respond to the particular vulnerabilities o IDPs through specialmeasures, such as targeted humanitarian aid or acilitated document replacement, that are not available toothers. It is there ore crucial or members o the general public and especially those living in communitieshosting large numbers o IDPs to understand that such measures are neither politicized nor arbitrary, butrather necessary to place ellow citizens disadvantaged by displacement in a position o legal and materialequality.

24 Report o the Representative o the Secretary-General on the Human Rights o Internally Displaced Persons, Walter Klin,Addendum, Mission to Colombia, A/HRC/4/38/Add.3 (2007), paragraphs 41 and 42.

25 Report o the Representative o the Secretary-General on the Human Rights o Internally Displaced Persons, Walter Klin,Addendum, Mission to the Democratic Republic o Congo, A/HRC/8/6/Add.3 (2008), paragraph 35 (available in Frenchonly).


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PArt I: Gen erAl ConsIderAtIonsC ap 2: Framework or National Responsibility

C. dAtA ColleCtIon

Accurate in ormation on the number, location, and condition o displaced populations is essential toimplementing legislation and policies in a manner that meets IDPs needs or protection. Proceeding withthe implementation o laws and policies without a sound base o in ormation on IDP populations presentsthe risk that scarce resources will be allocated to protection and assistance measures that IDPs do not needor that risks aced by speci c vulnerable subgroups o IDPs will be le t unaddressed.

Collection o relevant dataincluding on the number and composition o displaced communities, theirlocations, speci c needs, and vulnerabilitiesshould begin at the moment o displacement and shouldcontinue, as systematically as possible, until durable solutions have been sustainably achieved.26 Continuously updating data allows not only or correction o any inaccurate in ormation gathered early on, but also ortaking into account changes in the IDP population (such as ongoing or new displacement fows, statisticson new births and mortality, and so orth).

Data collection is not identical with registration (see chapter 1, section B), but registration may serve asone source o in ormation among others. There is no single correct way to collect accurate in ormation oninternal displacement, but international agencies have developed a number o approaches to assessing thenumber, characteristics, and needs o IDPs that may be help ul as a starting point. The state authorities bearprimary responsibility or compiling in ormation on IDPs and o ten may have access to important sourceso data such as census in ormation, property registration databases, and other o cial records. Although it iscrucial to protect the privacy o individuals by preventing the release o in ormation speci cally identi yingthem, the data in such administrative records may nevertheless be help ul in aggregate to gain a betterunderstanding o key characteristics and protection needs o IDP groups. Clear standards on collection,storage, and use should ensure the security and con dentiality o data.

National authorities in displacement crises should encourage and acilitate the gathering and consolidationo data on displacement by international actors. Methodologies such as those set out in The UNHCR Toolor Participatory Assessments in Operations or the IDMC/OCHAs Guidance on Pro ling Internally Displaced Persons refect lessons learned over the course o eld experience in numerous displacementsettings.27 When international assistance in data collection is available, the state has an important role toplay in acilitating international access to IDPs and providing an institutional ramework or coordinatingdata collection and disseminating the results (see section G, below).

26 For more details, see the chapters in part III. See also IDMC/OCHA, Guidance on Pro ling Internally Displaced Persons(April 2008) (www.humanitarianre orm.org/humanitarianre orm/Portals/1/cluster%20approach%20page/clusters%20pages/Protection/IDP_Pro ling_Guidance_2007.pd ).

27 UNHCR, The UNHCR Tool or Participatory Assessments in Operations (May 2006) (www.unhcr.org/publ/PUBL/450e963 2.html); IDMC/OCHA, Guidance on Pro ling Internally Displaced Persons (April 2008) (www.humanitarianre orm.org/humanitarianre orm/Portals/1/cluster%20approach%20page/clusters%20pages/Protection/IDP_Pro ling_Guidance_2007.pd ).


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26

O cial r q t or an acad mic rv o IDP in T rk

Turkey experienced signifcant internal displacement as a result o con ict with insurgency groups in itssoutheastern provinces during the early 1990s. One actor complicating a response was the act that ittook place during a period o rapid urbanization and high internal migration, leading to uncertainty regardingthe number o IDPs and the distinction between them and economic migrants. In order to address thatproblem, the frst RSG, Francis Deng, recommended the collection o comprehensive and reliable dataon the nature and scale o the problem, including the number o persons displaced and their currentwhereabouts, conditions and specifc needs, and . . . their intentions with respect to return or resettlement. 28 The Turkish government accordingly requested the Institute o Population Studies o Hacettepe Universityto assess the uture plans o IDPs as well as their current circumstances. The fndings o the survey, whichwere released in December 2006, provided detailed in ormation gained through a mix o qualitative andquantitative techniques. 29 The report was welcomed as an excellent basis or the Government to build onin planning programmes and strategies to address the challenges o fnding durable solutions or internallydisplaced persons. 30

CAse sTuDy

d. trAInInG on the rIGhts oF IdPs

Provision o training on internal displacement issues to government o cials at all levels is a key element o the exercise o national responsibility and can contribute to all aspects o an o cial response. With respectto IDP laws and policies, it is especially crucial to ensure that all o cials tasked with directly implementingsuch instruments understand

1. that IDPs retain their rights as citizens or habitual residents but that they ace particular displacement-related risks and vulnerabilities that may prevent them rom ully enjoying their rights;

2. precisely how o cials themselves should proceed in carrying out their duties with regard to IDPs;3. how any new routines and procedures or IDPs di er rom the ordinary routines and procedures

that o cials are responsible or carrying out under normal circumstances; and4. why the changes in the way that o cials carry out their work are necessary.

Many o the speci c measures recommended in this manual involve provision o special protections andassistance to IDPs or vulnerable subgroups o IDPs. For local administrative o cials, in practice that may

28 Report o the Representative o the Secretary-General on Internally Displaced Persons, Mr. Francis Deng, submittedpursuant to Commission on Human Rights Resolution 2002/56, Addendum, Pro les in Displacement: Turkey, UN Doc. E/CN.4/2003/86/Add.2 (27 November 2002), paragraph 36.

29 For more in ormation on the survey, see Institute o Population Studies, Survey on Migration and Displaced Population (www.hips.hacettepe.edu.tr/english/tgyona_eng.htm).

30 Report o the Representative o the Secretary General on the Human Rights o Internally Displaced Persons, Mr. WalterKlin, in accordance with General Assembly Resolution 60/168 and Commission on Human Rights Resolution 2005/46, UNDoc. A/62/227 (13 August 2007), paragraph 12.


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mean that they are expected to continue doing what they normally do ( or example, registering peopleto vote, processing requests or identity documents, or certi ying teachers) but on the basis o di erentrequirements, such as lowered standards o evidence or otherwise relaxed criteria that appropriately refectthe particular circumstances o IDPs. Mastering new procedures in crisis circumstances may imposesigni cant burdens on local o cials.

Such pressures can lead to arbitrary or inconsistent application o the lawor even bureaucratic obstructioni o cials are not given clear guidance and explanations. IDP laws and policies should not only be clearly dra ted and endorsed at the highest political levels but also be accompanied by training su cient to allow the o cials charged with implementing them to do so in an e ective manner. Such training should providenot only guidance on the narrow technical and logistical issues raised by the application o new laws andpolicies but also a broader explanation o the problem o internal displacementincluding the risks thatit poses or those a ected, particularly inherently vulnerable categories o IDPs (see chapter 1, sectionD)and the obligation o state authorities at all levels to provide protection and assistance.

e. nAtIonAl leGAl FrAmeWorK

An important starting point in addressing displacement in laws and policies is the question o whetherthe current legislative ramework needs to be changed. Experience shows that an e ective response todisplacement almost always requires legislative action. That is typically because (1) current laws poseunintended obstacles to the ability o IDPs to realize their rights or (2) they do not, on their own, providea su cient basis or addressing the needs o IDPs.

Most countries have a hierarchy o legal norms that must be respected in the process o responding todisplacement. Generally speaking, the strongest rules, such as laws o a constitutional character, also arethe hardest to make or change, while less binding orms o regulation can be passed more quickly and withless deliberation and consensus. The most binding norms in most systems are laws with constitutionalstatus, which typically require passage by a quali ed majority o the legislature. However, constitutionalrameworks are generally very broadly ramed and tend to include bills o rights that rein orce internationalhuman rights obligations at the domestic level, protecting the whole population, including IDPs. As a result,only in rare instances should constitutional change be necessary to respond to internal displacement.

Problems are more likely to arise at the level o ordinary laws, which may o ten be passed by national orregional legislatures by a simple majority. Ordinary laws rarely explicitly mention human rights; they tend toset out the concrete procedures and modalities through which individuals are able to realize internationally guaranteed rights in their daily lives. In playing this important role, laws o ten are supplemented by othertypes o regulation, such as executive orders or decrees (which may, under certain circumstances, have theorce o law) and administrative regulations (which o ten are passed by the ministry or agency responsibleor implementing a law in order to regulate any issues not covered in detail under the law).

One must keep in mind the many variations among the domestic legal orders o countries experiencingdisplacement, and it also is important to recall that rules or laws can be changed only by rules or laws o equal


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or greater weight. For instance, in some situations, it may be most expedient to issue a decree or administrativeregulation addressing the most urgent aspects o a displacement crisis. While such a decree should includelanguage a rming the rights o all IDPs, it cannot by itsel amend pre-existing legislative provisions thatmay e ectively prevent IDPs rom exercising their rights. Rather, problematic legislative provisions must beidenti ed and amended by new law. For example, while a decree or policy on IDPs should con rm the right o IDP children to education and set out institutional responsibilities and concrete steps or realizing that right,it does not on its own change the act that existing legal provisions may make it practically impossible ordisplaced children to enroll in schools where they are displaced or example, where enrolment would requireproo o local residency or documentation rom the childs previous school.

Taking that into account, the legal ramework or responding to displacement can include at least twoelements:

1. Review and analysis of existing national legislation with a view to identi ying and amendingprovisions incompatible with international human rights and humanitarian law underlying theGuiding Principles. While some rules may be obviously problematic, others might appear non-discriminatory but raise issues in practice. For instance, requirements that individuals producedetailed documentation in order to exercise certain rights may be impossible to meet or IDPs, who typically lose access to their personal documents. Amendments to such rules should set outexceptions or alternative procedures or IDPs and should quickly be accompanied by any necessary implementing regulations in order to ensure that local authorities tasked with giving e ect to thechanged procedures have clear instructions on how to proceed.

2. Passage of national laws speci cally regulating the response to internal displacement. Typically,such laws should be comprehensive, covering all phases o displacement, although, depending on

the circumstances prevailing in a particular country, the emphasis may be on a speci c phase o displacement. While the passage o such laws is to be encouraged, the dra ting process shouldtake place along with more rapid adoption o decrees and policies that support timely responses tointernal displacement crises through measures requiring neither legal amendment nor the passageo new legislation (see sections F, below, and G, page 40).

As a nal note, the capacity o some countries to legislate or uni ormly implement legislation may beseverely limited in the context o humanitarian crises giving rise to displacement. In such cases, any existingdomestic law and, when applicable, local customary rules should be interpreted in the spirit o the GuidingPrinciples in order to provide protection and assistance to IDPs. Such laws and rules cannot be invoked when they would contradict the generally accepted norms o international human rights and humanitarianlaw underlying the Guiding Principles.

F. nAtIonAl PolICy, strAteGy, or PlAn oF ACtIon

National policies, strategies, or plans o action can be adopted with less ormal procedures and there oreo ten more rapidly than laws. They there ore may be appropriate in lieu o ormal legislation, or they may


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be used to elaborate and implement legislation that is adopted. National policies, strategies, or plans o action should provide a clear overall ramework or organizing the response to internal displacement. Suchpolicies, strategies and plans o actions should

identi y priorities or legislative dra ting and amendment (see section E, page 37); complement existing laws by identi ying priority actions and allocating speci c roles to existing

national and local government departments or agencies, as well as national human rights institutions(NHRIs) and civil

Protecting IDP Manual

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