The first significant attempt in this regard has been the evolution of the Guiding Principles. As part of the activities of the Representative of the Secretary- General on Internally Displaced Persons, Mr. Francis Deng, the Guiding Principles on Internal Displacement have been prepared. This document reflects an attempt to address the human rights needs of internally displaced persons by codifying a set of human right guarantees.49 To this end, they restate relevant principles from a comprehensive range of international human rights and humanitarian law instruments, clarify the grey areas and address the gaps.50 These principles address all phases of displacement and are organised into 5 main sections:
principles relating to protection from arbitrary displacement,
principles relating to protection during displacement,
principles relating to humanitarian assistance, and
principles relating to return or resettlement and integration.
The introductory section to the Guiding Principles contains a revised definition of internally displaced persons. The previous definition adopted by the Representative referred to the internally displaced as “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.”51 The definition of internally displaced persons as per the Guiding Principles refers to them as “persons or groups of persons who have been forced to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, and who have not crossed an internationally recognised State border.”52 The revised definition aims to remedy two important deficiencies in the earlier definition:
It has done away with the temporal and quantitative aspects of the working definition which are capable of creating complications. For instance, in Iraq, there was nothing ‘sudden or unexpected’ about the displacement of the Kurds which took place over a considerable period in the late 1970s, 1980s and the early 1990s. Also, in Colombia, internally displaced people often flee in ‘small’ rather than in ‘large numbers.’53
The latter definition has also broadened the notion of coerced flight to encompass not just those ‘forced to flee’ but those ‘forced to leave’ as well, the latter being those who have not fled from their homes but who have been expelled or forcibly moved.54
According to Walter Kalin, the Guiding Principles are based on the following conceptual ideas:
1. Although internally displaced persons have departed from their homes, unlike refugees they have not left the country of which they are citizens. As such, they remain entitled to enjoy the full range of human rights as well as those guarantees of international humanitarian law which are applicable in a given situation.
2. Internally displaced persons experience a very special factual situation, and therefore, have specific needs. Like other vulnerable groups such as children, or the wounded and the sick for whom special provisions are made in international humanitarian law and refugee law, internally displaced persons do not constitute a distinct legal category. However, they have many special needs and the point of departure for the Guiding Principles has been the identification of these specific needs.
3. It is necessary to restate in more detail those legal provisions which respond to the needs of the internally displaced persons and to spell them out in order to facilitate their application in situations of internal displacement. Present international law contains sufficient protection for the specific needs of internally displaced persons in specific areas, but there are many grey areas where clarification is necessary.55
The protection of internally displaced persons is complicated by the application of different sets of laws in different situations:
(i) in situations of tensions and disturbances which fall short of internal armed conflict or disaster, human rights law is applicable;
(ii) situations of non- international armed conflict are governed by some of the most important principles of humanitarian law and by many human rights guarantees; and
(iii) in situations of inter-state armed conflict, the detailed provisions of international humanitarian law become primarily operative although many important human rights guarantees become applicable.
Given the application of such diverse sets of laws in different situations, it is often difficult, in practice to determine as to which norms apply to a particular situation. The Guiding Principles which cover all three situations attempt to facilitate the invocation and application of relevant legal norms. While they identify those specific guarantees which have to observed in all situations, at the same time, they differentiate between these situations where necessary.56
There are certain areas in contemporary international law where a general norm exists but a specific norm that would ensure implementation of the general norm has not yet been articulated. Many Guiding Principles try to specify in a more detailed manner the meaning of general norms for the special situation of displacement. Principle 12, for instance, first states that ‘every human being has the right to liberty and security of person’- a principle that is stated in a host of international human rights instruments. It then goes on to say that ‘in order to give effect to this right for internally displaced persons, they shall not be interned or confined to a camp…”.57
Finally, the Guiding Principles attempt to progressively develop certain general principles of human rights law where existing treaties and conventions may contain some gaps. One example is the prohibition of return to situations of imminent danger. Such a prohibition can be deduced from the prohibition of inhuman treatment, as it has been recognised by international monitoring bodies that it is inhuman to send a person to a country where he or she will face torture, death or similar human right violations. However, case law on this aspect focuses on return across international borders, a prohibition of inhuman return of internally displaced persons to dangerous areas within their own country needs to be specifically articulated. Therefore, Principle 15 states that the right of internally displaced persons ‘to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/ or health would be at risk.’ Such a principle, although yet to be stated in an authoritative international law instrument, is in line with the spirit of existing international law and reflects its underlying principles.58 Thus, the Guiding Principles aim to clarify some grey areas of international law by adapting them to suit the requirements of protecting internally displaced populations.