Non-Refoulement and Internally Displaced Persons: A Call for Enhanced Protection?
Guest Contributor: Jenny Poon Ph.D. Candidate; Faculty of Law, University of Western Ontario.
Based on United Nations High Commissioner for Refugees (UNHCR) official figures, there are currently 65.6 million forcibly displaced people worldwide as of 2016. According to the Norwegian Refugee Council Internal Displacement Monitoring Centre in its Global Report, since 2016, there were 31.1 million new internal displacements by conflict, violence and disasters – the equivalent of one person forced to flee every second. These statistics show the ongoing importance to provide and enhance protection for the internally displaced.
A neglected group of individuals
Despite the ongoing need for protecting Internally Displaced Persons (IDPs), analyses of non-refoulement are often focused solely on international protection. A critical piece of the puzzle has been neglected by academic literature: namely, what happens to IDPs who are forcibly displaced but not crossing international borders? Since non-refoulement applies equally to both asylum seekers and refugees, can a case be made that IDPs also benefit from non-refoulement protection?
Another question worth asking is: What is the distinction, if any, between an IDP and asylum seeker? An asylum seeker is defined as someone who is in the process of seeking asylum or protection but whose claim has not yet been formally assessed. An IDP is defined, under Article 2 of the United Nations Guiding Principles on Internal Displacement (Guiding Principles) as ‘persons or groups of persons who have been forced or obliged to flee or 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 generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border’. As one can see, an IDP may seek asylum from situations aforementioned, but they are legally distinct from refugees because they have not crossed an international border.
Although the UNHCR does not have a specific mandate to protect IDPs, it has been authorized by the UNGA ‘to be involved operationally under certain circumstances in enhancing protection and providing humanitarian assistance to internally displaced persons through special operations’.
A gap within existing law
Current legal protection for IDPs is scarce. IDPs are generally protected by general international human rights law such as Article 12 of the International Covenant on Civil and Political Rights, and Article 49 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War in international humanitarian law. Since the situation of IDPs is specific, without a proper IDP-tailored framework, it is difficult to enhance protection for this group of individuals who are otherwise not eligible for refugee protection because they have not crossed an international border. Patchwork legislation as a result of sewing together different branches of international law leave gaping holes for IDPs. This concern is affirmed by the Norwegian Refugee Council in its Opinion Series on IDPs. The Guiding Principles applicable to IDPs is a soft law instrument, so that it has no binding force under international law.
Non-refoulement protection is therefore vital in safeguarding the fundamental rights of IDPs. The principle of non-refoulement is recognized under Art 15(d) of the Guiding Principles, which states that: ‘Internally displaced persons have: (d) The right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk’.
The link between non-refoulement and IDPs
The link between non-refoulement and IDPs may be illustrated some examples. The Russian annexation of Crimea in early 2014. Human rights organizations such as the Human Rights Watch has expressed concern over Russia’s actions in occupied Crimea.
In the situation of an IDP fleeing from Russian occupation of Crimea for fear of persecution from Russian forces, he or she may not be entitled to the same protection as refugees, since the IDP is not crossing an international border. The IDP is especially vulnerable where the State of Ukraine is unable or unwilling to offer protection. Here, the question of internal flight alternative (as in the case for determining refugee status) does not exist or may not be applicable, given the IDP is unable to gain protection from the State of Ukraine elsewhere. Since IDPs are not within the core mandate of the UNHCR, no protection or humanitarian assistance from international agencies is available. Further, given the complexity of the situation between Russia and Ukraine, the international community may be reluctant to intervene – this is despite the United Nation’s obligation to prevent human rights violations such as non-refoulement from taking place pursuant to Article 55 of the Charter of the United Nations. The European Union, for instance, has issued a detailed study on enhancing the national legal framework in Ukraine for protecting the human rights of IDPs in 2016, especially to address the massive flows of IDPs from eastern Ukraine as a result of the armed conflict with Russia.
The question remains, however, on whether non-refoulement obligations may apply if an individual has not been able to leave Crimea. In that scenario, the IDP cannot be ‘returned’ to Crimea, if he or she never ‘left’.
Another situation which warrants discussion is the Syrian IDP problem. According to UNHCR estimates, there are currently 6.5 million people, including 2.8 million children, displaced within Syria, which is the biggest IDP population in the world. If one accepts that non-refoulement would apply in the situation of IDPs, as argued above, IDPs displaced within internal borders of Syria (thus not refugees) but under occupied power of rebel groups or forces should be protected from being sent back to occupied territories within Syria, where they may face threats to their lives or freedom. In practice, this would mean that Syrian IDPs fleeing internally from persecution or situations of generalized violence, would be protected from being sent back to parts of Syria where they fled (such as rebel-occupied territories). There is UNHCR support for the application of non-refoulement to IDPs, in particular in its Handbook for the Protection of Internally Displaced Persons.
As the Crimean and Syrian examples show, protection for IDPs requires more attention from the international community. One way of enhancing such protection for IDPs is by recognizing the need to protect IDPs from refoulement to situations where they may face massive violations of human rights, even where they may not be crossing an international border.
The above served as a brief sketch of the underlying problems around legal protection for IDPs. It has been demonstrated that, despite this gap in the law, the very basic protection for IDPs such as protection from refoulement should be safeguarded. It is the hope that this blog post can raise awareness on the need for enhanced protection for those being forcibly displaced internally.