Legal protection of internally displaced persons
Despite not being the beneficiaries of a specific convention, as is the case for refugees, internally displaced persons (IDPs) are protected by various bodies of law, principally national law, human rights law and, if they are in a State experiencing an armed conflict, international humanitarian law.
Displaced person, Georgia, “People on War” consultation, ICRC 1999.
The majority of IDPs are nationals of the State in which they find themselves. As such, they are entitled to the full protection of national law and the rights it grants nationals, without any adverse distinction resulting from the fact of their displacement.
Human rights law, which is applicable both in times of peace and in situations of armed conflict, also provides important protection to IDPs. It aims both to prevent displacement and to ensure basic rights should it occur. The prohibition on torture, cruel, inhuman or degrading treatment or punishment, and the right to peaceful enjoyment of property and to home and family life are of particular import ance for the prevention of displacement. The right to personal safety and to a home, as well as the rights to food, shelter, education and access to work offer vital protection during displacement. Many of these rights are also of relevance to the issue of return.
These and other human rights must be granted to everyone without discrimination, including discrimination on the grounds of displacement.
International humanitarian law is applicable in situations of armed conflict, whether international or non-international. If IDPs are in a State that is involved in an armed conflict then, provided they are not taking an active part in the hostilities, they are considered civilians and, as such, are entitled to the protection afforded to civilians.
International humanitarian law expressly prohibits compelling civilians to leave their place of residence unless either their security or imperative military necessity render this essential.
If respected, the general rules of international humanitarian law that protect civilians can prevent displacement or, should it occur, offer protection during displacement. The following rules are of particular relevance:
those prohibiting parties to a conflict from targeting civilians and civilian objects or conducting hostilities in an indiscriminate manner;
the prohibitions on starvation of the civilian population and on the destruction of objects indispensable to its survival;
the prohibitions on collective punishments – which often take the form of destruc tion of dwellings;
the rules requiring parties to a conflict to allow relief consignments to reach civilian populations in need.
If respected, these rules play an important role in preventing displacement, as it is often their violation which is at the root of displacement.
The only context in which international humanitarian law expressly addresses the question of return is that of “lawful displacements”, i.e. evacuations for reasons of security or imperative military necessity. In such cases, displaced persons must be returned to their homes as soon as hostilities in the area have ceased. A right of return can be inferred a fortiori following arbitrary displacement.
These bodies of law are binding on States and, in the case of international humanitarian law, also on organized armed groups. Their aim is to provide fundamental protections that can prevent displacement, protect people during displacement, and help them to return to their homes. Existing law covers the most important needs – there are no significant gaps in the legal protection of IDPs. The challenge lies in ensuring the implementation of existing rules.