Displacement without end:
internally displaced who can’t go home
by Bill Frelick
n contrast, the most widelyaccepted definition of an intern-ally displaced person (found inthe Guiding Principles on InternalDisplacement) fails to mention protec-tion and does not clearly delineatewhen a person ceases to be internallydisplaced. That definition rests funda-mentally on the notion of movement –that IDPs have been "forced or obligedto flee or to leave their home … andhave not crossed an internationallyrecognised State border." Likewise, thefinal section of the Guiding Principles– dealing with return, resettlementand reintegration – makes no mentionof the word protection but ratheremphasises return movement orresettlement.Principle 28 calls upon competentauthorities to allow IDPs to "returnvoluntarily in safety and with dignity,to their homes or places of habitualresidence, or to resettle voluntarily inanother part of the country."Authorities are not specifically calledupon to offer protection but rather to"endeavour to facilitate the reintegra-tion of returned or resettled internallydisplaced persons." Principle 29 callsfor nondiscrimination towards IDPreturnees and their right to equalaccess to public services, and sug-gests that IDPs have a right either torecovery of their abandoned proper-ty/possessions or to compensation.It does not specifically say that IDPswho have relocated and reintegratedto another part of their country (pre-sumably re-availing themselves of theprotection of their government) haveceased to be IDPs. The GuidingPrinciples don’t say this because theycan’t. To be an IDP is not a legal sta-tus. To be a refugee is. ‘Internallydisplaced person’ is a descriptiveterm [see article by Kälin, pp. 15].‘Displacement’ as a word requires move-ment. Someone or something cannot be‘undisplaced’ unless the movement isreversed and the person or objectrestored to its original location.The Guiding Principles acknowledgethe fundamental gap in human rightslaw between being internally dis-placed and being a refugee. In SectionTwo, the Principles relating to protec-tion from displacement speak of theright not to be "arbitrarily" displaced but recognise that some displacement,such as for large-scale developmentprojects, may be justified by "com-pelling and overriding publicinterests" and that "measures shall betaken to minimize displacement andits adverse effects." One cannot sub-stitute the word ‘refugee’ here.Human rights law finds no justifica-tion under any circumstances formaking someone a refugee becausethe threat underlying refugee status ispersecution and the lack of protectionagainst being persecuted. IDPs, on theother hand, may be displaced for avariety of reasons not limited to per-secution.If the cause of displacement is notnecessarily persecution or even an actprohibited by international law, and if the solution for an IDP is not strictlyspeaking the restoration or acquisi-tion of protection but simply returnto the previous status quo, does anIDP have a right to return? The princi-pal legal architect of the GuidingPrinciples on Internal Displacement,Walter Kälin, writes, "there is no gen-eral rule in present international lawthat affirms the right of internally dis-placed persons to return to theiroriginal place of residence or to moveto another safe place of their choicewithin their home country."
So, even though international lawdoes not support a right of IDPreturn, the descriptive reality cannotcease until such return happens.What, therefore, ought to be therights-based concern on behalf of internally displaced people?The rights concern ought not to be because a person is internally dis-placed
but – by analogy withthe underlying concern for refugees – because a person who is internallydisplaced lacks the protection of theirgovernment and, owing to fear of per-secution, is unable to access thatprotection. The rights concern oughtto be particularly heightened for IDPswho are prevented from seeking asy-lum from persecution in anothercountry. The human rights concernought fundamentally to focus onthose IDPs who fear persecution with-in their country and who lack theprotection of – or are threatened by –their own government. Unfortunately,myriad examples of such circum-stances exist – Angola, Burma,Chechnya, Colombia, Congo-Kinshasa,Iraq, Liberia, Sudan. The list goes on.There are, however, millions of otherpeople who are also counted as IDPs because they have been displaced inone manner or another from theirplaces of origin but who have relocat-ed and reintegrated in another part of their country and enjoy the same civiland political rights as their fellowcitizens. If we may take the refugeeanalogy, their situation would becomparable to the refugee who haslost his/her home and possessionsand cannot return to reclaim them but who has found protection underanother government. Such a refugeehas suffered a grievous wrong and
There is relatively little doubt about when refugeestatus ends. The 1951 Refugee Convention clearlyspells out that refugee status ends when the refugeeis no longer in need of protection. The fundamental principle underlying the refugee definition is not movement across a border but protection or the lackthereof from the government of his/her home country.