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Displacement Without End[1]

Displacement Without End[1]

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Published by Bill Frelick
Bill Frelick, IDPs, internally displaced people, internal displacement, Guiding Principles on Internal Displacement, Forced Migration Review
Bill Frelick, IDPs, internally displaced people, internal displacement, Guiding Principles on Internal Displacement, Forced Migration Review

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Published by: Bill Frelick on Jan 23, 2012
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10FMR 
17
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."
1
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
per se
 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.
I
 
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Displacement without end: internally displaced who can’t go home
usually continues to suffer hardshipas a result of those losses. But, legal-ly, the person is no longer a refugee.
Internal flight alternativeand IDPs
Human rights, at least with regard tocivil and political rights, tend towardthe minimalist, such as the rights notto be tortured and abused. Refugeerights, as conceived by the drafters of the Refugee Convention, are similarlymodest. The foundation stone of theRefugee Convention is the principle of 
non-refoulement 
, the right of a personnot to be returned to a place wheres/he would be persecuted. ‘Place’ isnot generally interpreted to mean theentirety of a refugee’s home country.Thus, asylum jurisprudence in anincreasing number of states embracesthe notion of an ‘internal flight alter-native’ or ‘internal protection’ – thenotion that refugees can be deniedasylum and returned to their countryof origin even if they cannot return totheir home or habitual place of resi-dence within that country. In effect,refugee law in a growing number of states allows the explicit creation of internally displaced persons. It recog-nises that a person has a well-foundedfear in one part of his/her country but that the same person could enjoythe protection of his/her governmentin another part of the country. Thekey consideration is that the threat of persecution does not exist outside therefugee’s original locality and that theperson’s government is willing andable to protect them.The internal flight alternative conceptis still quite controversial, and thisauthor has been among its fiercestcritics,
2
 but it is less controversialwhen the feared persecutor is a localnon-governmental entity opposed bythe central government, when therefugee identifies with the majoritypopulation and embraces the ideologyof the central government, and wherethe government gives every assurancethat it extends the same rights of citi-zenship and opportunity to thereturnee as would be enjoyed byother citizens in the government-controlled part of the country whonever left.Take as an example an ethnic Kurdand an ethnic Turk from southeasternTurkey. Both may have fled Turkeyand sought asylum in Germany.For the sake of argument, let us saythat both asylum seekers have suc-cessfully established a well-foundedfear of persecution in southeasternTurkey. The Turkish Kurd fears perse-cution at the hands of governmentforces and government proxies. Theethnic Turk fears persecution at thehands of Kurdish militants. Becauseof the involvement of the central gov-ernment, the Kurd can be said not toenjoy an internal flight alternativesince his fear of persecution cannot be confined to the southeasternregion. For the Turk, on the otherhand, relocation and reintegration incentral or western Turkey might be aviable option if he does not feelthreatened by his government andregards the threat as entirely local; if his government is willing and able toprotect him and if the local non-gov-ernmental forces that would harmhim should he return to the southeastdo not have the means of carrying outsuch a threat beyond that region.However, it is indisputable that whenGermany returns the Turkish refugeeto Istanbul or Ankara, even though theperson at that moment ceases to be arefugee, he, in fact, becomes an IDP.As already established by the termitself, he remains an IDP until he is
 Displaced family in Iraq, 1992.
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