Prepared by the
Public International Law & Policy Group
The Rights of IDPs
Statement of Purpose
The purpose of this memorandum is to provide an overview of the legal rights and status of internally displaced persons under international law.
Introduction No single international convention specifically addresses the rights of internally displaced persons (IDPs). Rather, IDP rights derive from human rights and humanitarian law norms. International instruments create and codify these rights and norms in numerous international instruments, including the Charter of the United Nations and the four Geneva Conventions of August 12, 1949. 1 These instruments, coupled with analogous refugee laws, provide a basic legal framework for IDP rights. The Guiding Principles on Internal Displacement (the Guiding Principles) draws upon all of these sources and presents an internationally accepted foundation for IDP rights.2 The right of IDPs to return to their place of residence prior to the conflict is an important international norm and part of many comprehensive peace settlements. However, the ability of IDPs to exercise the right of return is dependant upon the availability of the means to do so.
Legal Basis for IDP Return
The legal framework protecting IDPs stems from human rights principles and norms that are part of customary international human rights law. Fundamental human rights law is the basis from which IDPs derive their inherent rights to survival, dignity, and well-being. The four Geneva Conventions of 1949 and the two additional Protocols of 1977 are particularly relevant to IDPs. Once an internal armed conflict occurs, Protocol II becomes applicable to those IDPs who live within the territory affected by hostilities. Article 3, common to the four Geneva Conventions, is the cornerstone of protection for displaced persons fleeing from armed conflict. It applies automatically during armed conflict, imposing a legal obligation on the parties to treat non-combantants humanely.3
The Guiding Principles on Internal Displacement4 (Guiding Principles) is one of the primary international documents on the rights and treatment of IDPs.5 A team of international legal experts developed the principles under the direction of the Representative of the Secretary-General, Dr. Francis M. Deng, at the request of the UN Commission on Human Rights and the General Assembly, which had called for the development of a normative framework for IDPs. The Guiding Principles provide specific recommendations for handling the return, resettlement, and reintegration of IDPs.6 Specifically, Principle 28 recommends that “competent authorities” establish conditions that allow the return of IDPs “in safety and with dignity” and recommends these authorities facilitate their reintegration.7
International treaties establish similar rights. For example, the International Covenant on Civil and Political Rights (ICCPR) provides that a person will not be “deprived of the right to enter his own country.”8 The UN Sub-Commission on Human Rights grants IDPs the right “to return freely…in safety and dignity,” and to “adequate housing and property restitution or, should this not be possible, just compensation or another form of just reparation.”9
The UN Sub-Commission on Human Rights also recommends that the “recognition of such rights, as well as judicial or other mechanisms to ensure the implementation of such rights, should be included in peace agreements ending armed conflict.”10 Comprehensive peace settlements, such as the Dayton Peace Accords and the Kosovo Peace Agreement, include the right of return for IDPs along with enforcement provisions.11
Protection of property rights must accompany the right of return. Without property rights the right of return would only be symbolic. The Guiding Principles sets out IDPs’ right to property restitution.12 The Guiding Principles calls for both restoring IDPs’ property and housing lost during displacement, or compensating IDPs for destroyed or irretrievable property and housing. International conventions, such as the ICCPR and the International Covenant on Economic, Social and Cultural Rights also provide for IDPs’ property rights, both concerning property left behind and property located at IDPs’ current habitations.13 Article 17 of the ICCPR establishes that no one can unlawfully interfere with another’s home and that everyone has the right to protection against such attacks. Article 2.3 of the ICCPR requires parties to the Covenant to create effective remedies for violations through competent judicial, administrative, legislative, or other competent state authorities.14
The Principles on Housing and Property Restitution for Refugees and Displaced Persons that the UN Commission on Human Rights (Pinheiro Principles) promulgates, reflects the most recent and widely accepted principles of international human rights, refugee, and humanitarian law.15 Section II, Article 2.1 provides that governments should restore any housing, land, and property that IDPs have lost due to their displacement, or provide compensation for the lost property through an independent, impartial tribunal. Article 5 calls upon states to “incorporate protections against displacement into domestic legislation” and to “extend these protections to everyone within their legal jurisdiction or effective control.”16
The Rights to Safety and Security
The key elements of safety and security concerning IDP rights go beyond protecting IDPs from violence. The Geneva Conventions and their Additional Protocols are central to IDPs’ rights to safety and security. Common Article 3 of the Geneva Conventions requires humane treatment of non-combatants under all circumstances.17 Building on this foundation, the Guiding Principles specifically calls for the “protection of persons from forced displacement” and for the “protection and assistance during displacement as well as during return or resettlement and reintegration.”18
Freedom of Movement
In addition to safety and security, freedom of movement enables IDPs to return to basic, normal life routines. Often questions of freedom of movement address whether IDPs will be able to move throughout a territory in order to seek employment or have access to full social services, such as access to educational facilities for their children.19
Freedom of movement is a benchmark the UN uses to measure the success of IDP return.20 Freedom of movement is important because it allows IDPs to establish a routine that can start the reintegration process. Without the assurance of freedom of movement, IDPs have no incentive to move from their host communities, as they may fear returning to an environment in which they cannot perform tasks associated with daily life.
International norms provide a substantial foundation for the rights of IDPs. Specifically, IDPs have the right of return, the right to property rights and the right to protection from harm. However, IDPs cannot exercise these rights without cooperation and support from governments.
About the Public International Law & Policy Group
The Public International Law & Policy Group, a 2005 Nobel Peace Prize nominee, is a non-profit organization, which operates as a global pro bono law firm providing free legal assistance to states and governments involved in peace negotiations, drafting post-conflict constitutions, and prosecuting war criminals. To facilitate the utilization of this legal assistance, PILPG also provides policy formulation advice and training on matters related to conflict resolution.
PILPG’s four primary practice areas are:
* War Crimes
* Post-Conflict Political Development
* Public International Law
To provide pro bono legal advice and policy formulation expertise, PILPG draws on the volunteer services of over sixty former legal advisors and former Foreign Service officers from the US Department of State and other foreign ministries. PILPG also draws on pro bono assistance from major international law firms including Baker & McKenzie; Covington & Burling; Curtis, Mallet-Prevost, Colt and Mosle; DLA Piper; Sullivan & Cromwell; Steptoe & Johnson; Milbank, Tweed, Hadley & McCloy; WilmerHale; Vinson & Elkins; and graduate international affairs and law students at American University and Case Western Reserve Schools of Law. Annually, PILPG is able to provide over $2 million worth of pro bono international legal services.
Frequently, PILPG sends members in-country to facilitate the provision of legal assistance and its members often serve on the delegations of its clients during peace negotiations. To facilitate this assistance, PILPG is based in Washington, D.C. and has points of contact in New York City, Boston, Seattle, Cleveland, London, Paris, Rome, The Hague, Stockholm, Belfast, Krakow, Budapest, Zurich, Tbilisi, Kabul, and Nairobi.
PILPG was founded in London in 1995 and moved to Washington, D.C. in 1996, where it operated under the auspices of the Carnegie Endowment for International Peace for two years. PILPG currently maintains an association with American University in Washington, D.C., and Case Western Reserve University in Cleveland, Ohio. In July 1999, the United Nations granted official Non-Governmental Organizations status to PILPG.
In January 2005, a half dozen of PILPG’s pro bono clients nominated PILPG for the Nobel Peace Prize for “significantly contributing to the promotion of peace throughout the globe by providing crucial pro bono legal assistance to states and non-state entities involved in peace negotiations and in bringing war criminals to justice.”