Towards a regime For The Protection Of Internally Displaced Persons


IV. THE DEFINITIONAL DILEMMA: PROBLEMS IN DEFINING INTERNAL DISPLACEMENT



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IV. THE DEFINITIONAL DILEMMA: PROBLEMS IN DEFINING INTERNAL DISPLACEMENT

Any attempt at defining the term ‘internally displaced persons’ throws up a number of complex, inter- related issues. One of the principal difficulties encountered in establishing a more systematic approach to the plight of internally displaced people is the debatable nature of the concept itself. If there is to be a special legal regime for IDP’s, then its beneficiaries would have to be clearly identified. Prof. Chimni comments that any definition would have to avoid the twin pitfalls of being overly broad or narrow. In the former place, practically anyone would qualify as an IDP. Some analysts limit the term to people who have left their usual place of residence in the context of large-scale movements, and in circumstances similar to those which create refugees. Others, however, tend to employ the concept in relation to all those people who have moved within their own country for reasons that are not entirely voluntary. This includes, for example, changes of residence induced by environmental and industrial disasters, as well as the forcible relocation and population distribution programmes which governments often employ to counter security threats and to implement large-scale development projects.

Should all categories of IDP’s, irrespective of their cause of displacement, be beneficiaries of a separate legal framework or only those who are the victims of human rights violations? On the other hand, if the definition were overly narrow it may leave too many people outside the protection net. In that case, the very purpose of having a separate legal regime would be lost. A special regime would also need to address the question as to when an individual ceases to be a displaced person.

There are many who question the advisability of creating a distinct legal category of ‘internally displaced persons’. Even assuming that a definition of the concept can be agreed upon, it would undoubtedly be difficult to apply in practice. A large proportion of the world’s internally displaced people, for example, are to be found in urban areas, where their situation is virtually indistinguishable from other rural-to-urban migrants.

The definition of internal displacement generally excludes from its scope those situations in which people are obliged to move as a result of environmental disasters, development projects and infrastructural schemes. For although such people often suffer from material and psychological hardship, they may also continue to benefit from the protection of the state, and may even receive some form of compensation from it.20 

In general, there is a strong case to be made for the argument that internally displaced people do not necessarily have to return to their original place of residence in order to find a solution to their plight, as long as they benefit from the protection of the state and are able to enjoy a satisfactory degree of physical, material and legal security in the location where they have settled. In South Africa, for example, the number of internally displaced people is said by some sources to be in the region of four million, although this total includes those who have been uprooted or relocated over a period of 30 years, many of whom are now fully settled and integrated in their place of residence. The concept of internally displaced people – which is problematic enough in any case – clearly loses even more of its value when used in this indiscriminate manner.21  Therefore, not all problems of the internally displaced are homogenous, and there is a need for their definite prioritisation with maximum attention being devoted to the most serious problems.

At present, there is no internationally agreed definition of who is an internally displaced person. Achieving one is essential both for the development of accurate statistics and information and for comprehensive and coherent action.22  The UN’s current working definition of who is an IDP is phrased thus:

“… persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or man- made disasters, and who are within the territory of their own country.”23 

This definition has been described as both too broad and too narrow. Including victims of natural disasters is said to make it unduly broad. Persons fleeing armed conflict, internal strife, and systematic violations of human rights would, if they were able to cross a border, qualify as refugees both under the Organisation of African Unity (OAU) Convention and the Cartagena Declaration, and, arguably, in many cases, under the narrower definition of the Refugee Convention as well. But persons uprooted by natural disasters would not: they generally are not in need of international protection of their human rights. Moreover, their governments and the international community are usually willing- if not always able- to provide them with assistance. The argument for retaining them in the definition is based essentially on cases where governments respond to natural disasters by persecuting certain groups on political or ethnic grounds or by violating their human rights in other ways. For example, when drought and famine ravaged Ethiopia in the mid- 1980’s, the government forcibly relocated hundreds of thousands of Tigereans it regarded as political opponents, under the pretext of responding to a natural disaster. In other countries, persons have also been displaced because of a combination of natural causes and racial, social or political reasons. Maintaining natural disasters in the text, it is argued, would assure protection for such persons.

A better solution, however, might be to qualify the term so that it covers cases involving human right violations and persecution but not all victims of natural disasters.

The same reasoning would apply to man- made disasters, for example, ecological or nuclear disasters. Whereas displaced populations in many of these cases should readily receive assistance from their governments and/ or from the international community, other cases may be complicated by persecution and systematic violations of human rights or the need for international protection. It is the latter cases that should be covered by the definition. The same would be true for development projects that cause displacement.

The quantitative and time qualifiers in the definition, on the other hand, make it unduly narrow. Restricting the internally displaced to those forced to leave ‘suddenly or unexpectedly in large numbers’ would exclude serious cases of internal displacement- such as in Colombia, where the displaced often flee in large numbers, making them less conspicuous; or in Iraq, where the government organised the uprooting of Kurds over a period of years in the late 1970’s, 1980s and early 1990s.24 

The term ‘forced to flee’ is also narrow. Countless numbers in Burma, Iraq and Ethiopia have been forcibly moved by their governments on political and ethnic grounds: they did not flee. Nor did Bosnian Muslims forcibly expelled from their homes in Banja Luka and other areas of Bosnia on ethnic and religious grounds. Such persons should explicitly be included as internally displaced.

The definition essentially should help identify persons who should be of concern to the international community because they are basically in refugee- like situations25  within their own countries, and their own governments are unwilling or unable to protect and assist them. Some development agencies have proposed expanding the definition to encompass those who migrate because of poverty or other economic causes. But this would add millions of persons to the definition who have not fled or been forced out from their homes and whose needs are best addressed by development programmes generated by national and international agencies.

The internally displaced should be defined as persons or groups of persons who have been forced to flee, or leave, their homes or places of habitual residence as a result of armed conflict, internal strife and systematic violations of human rights, as well as natural or man- made disasters involving one or more of these elements, and who have not crossed an internationally recognised State border. What should make internally displaced persons of concern to the international community should be the coercion that impels their movement, their subjection to human rights abuse as a result of this uprootedness, and the lack of protection available within their own countries.

When an internally displaced person ceases to be displaced also needs clarification. Conventional wisdom would have it that the voluntary return of the displaced to their homes or their re- integration elsewhere marks the end of internal displacement. But if protection is largely lacking in these areas and their land and homes are occupied by others, can internal displacement be said to be over? In Angola, for example, groups of internally displaced persons voluntarily transported back to their home areas found that they could not remain there because all infrastructure had been destroyed and they had no means of sustaining themselves. The mere act of return therefore did not end their internal displacement. Determining when internal displacements is ended should go beyond merely registering whether return or relocation has taken place. It should include whether the returns or relocations are reasonably viable and whether basic security and survival are assured.






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