“The look of pure terror on the face of the little Korku tribal girl child said it all as the elephant razed her house in the pouring rain. Her parents pleaded with the Forest officials saying that they were living and cultivating the lands there for the past three decades. However, the officials said they had no alternative, since they had been instructed to evict all encroachers as ordered by the Supreme Court.”[i]

The eviction of indigenous people from their land is a recurrent theme in South Asia. Be it Ranigaon, Golai, Motakeda, Somthana, Ahmedabad, Bandarban, or Trincomalee, thousands of families are being evicted from their homes either in the name of conflict or in the name of modernization. They are being forced to stay in the open, in pouring rain with a number of them suffering from malnutrition and starvation and they are fearful for their lives at most times. The last two decades have witnessed an enormous increase in the number of internally displaced people in South Asia. Their situation is particularly vulnerable because unlike the refugees they are unable to move away from the site of conflict and have to remain within a state in which they were displaced in the first place. These unfortunate people who have been displaced once are often displaced multiple times by the hands of the powers that be. Yet as displaced they do not have the capacity to cross international borders but seek rehabilitation from the powers that are responsible for their displacement in the first place.

Besides being ‘potential refugees’ who might cross international borders, most of the IDPs living in these countries share ethnic continuities with the people of the neighbouring countries. The Pashtuns of northwest Pakistan for example, seem to harbour an active interest in the affairs of their ethnic cousins living in Afghanistan and vice versa. Similarly, much of what happens inside today’s Myanmar has its implications for the minorities of northeastern India and Bangladesh. Massive displacement and the resulting plight of the predominantly tribal populations such as, the Nagas of Myanmar continue to be one of the key running themes of the Naga rebel discourse across the borders and the ethnic cousins of Myanmar are described by it as, ‘the Eastern Nagas’. Insofar as the creation of national borders could not make many of these pre-existing ethnic spaces completely obsolescent, South Asia’s living linkages with West or South East Asia can hardly be exaggerated. Also national specificities notwithstanding South Asian IDPs are connected by their ethnicities, minority status and situations of extreme marginalisation. This portrays the reality that in so far as in South Asia IDPs cannot be regarded as a national category. It is essential to think of them as regional categories.

The situation of IDPs seems particularly vulnerable when one considers that there are hardly any legal mechanisms that guide their rehabilitation and care in South Asia. Since the early 1990s the need for a separate legal mechanism for IDPs in South Asia has increasingly been felt. This is not only to compile new laws but also to bring together the existing laws within a single legal instrument and to plug the loopholes detected in them over the years. Only recently the international community has developed such a mechanism that is popularly known as the UN Guiding Principles on internal displacement. This has given us a framework within which rehabilitation and care of internally displaced people in South Asia can be organised. Keeping that in mind it becomes imperative for scholars working on issues of forced migration in South Asia to consider whether South Asian states have taken the Guiding Principles into account while organising programmes for rehabilitation and care for the internally displaced persons (IDPs).

The Guiding Principles on Internally Displaced Persons set out the rights of internally displaced persons relevant to the needs they encounter in different stages of displacement. The Guiding Principles provide a handy schematic of how to design a national policy or law on internal displacement that is focused on the individuals concerned and responsive to the requirements of international law. Similarly, governments (and particularly national human rights institutions where they exist), advocates, and displaced persons can use the Guiding Principles as a means to measure the compliance of existing laws and policies with international standards. Finally, their simplicity allows the Guiding Principles to effectively inform the internally displaced themselves of their rights. The Guiding Principles are thus part of a growing number of “soft law” instruments that have come to characterize norm-making in the human rights field as well as other areas of international law, in particular environmental, labor and finance.

One of the most important contributions of the Guiding Principles is to develop an acceptable definition/description of those who can fit within the category of internally displaced persons. They are defined as “persons or groups of persons who have been forced or obliged 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 generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.” The Guiding Principles also reflect on the rights of displaced people, the obligations of their states’ towards them and also the obligations of international community towards these people. This booklet is an effort to make such rights accessible to vulnerable people of South Asia who are already displaced or live in fear of displacement.

What Types of Displacement are Prohibited by the Guiding Principles?

Principle 6 affirms that “[e]very human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.” Support for this proposition can be found in humanitarian law and also in the right to movement, guaranteed by a number of human rights instruments, which can be reasonably expected to have as its corollary the “right not to move.”

It is important to note that the Guiding Principles do not claim that displacement is always prohibited. In both humanitarian and human rights law, exceptions to the general rule are available. Rather it is arbitrary displacement” that must be avoided and Principle 7 provides a sort of roadmap for avoiding arbitrariness. First, all feasible alternatives to displacement must be explored. In situations of armed conflict, this means that a determination must be made either that the security of the population or “imperative military reasons” require displacement before it can be carried out.

Where displacement is to occur outside the context of armed conflict, Principle 7 provides a list of procedural protections that must be guaranteed, including decision- making and enforcement by appropriate authorities, involvement of and consultation with those to be affected and the provision of an effective remedy for those wishing to challenge their displacement. These provisions are, of course, of particular interest to those facing displacement for development projects.

Moreover, in either context, “all measures” must be taken to minimize the effects and duration of the displacement and the responsible authorities are required to ensure “to the greatest practicable extent” that the basic needs of those displaced (e.g., shelter, safety, nutrition, health, and hygiene) are met. It should also be noted that Principal 9 articulates a “special obligation” to protection against displacement of a number of groups whose special attachment to territory has been recognized in international law, including indigenous persons, minorities, peasants, and pastoralists.

What Rights do Persons have Once Displaced?

Displaced persons enjoy the full range of rights enjoyed by civilians in humanitarian law and by every human being in human rights law. These include the rights to life, integrity and dignity of the person (e.g., freedom from rape and torture), non-discrimination, recognition as a person before the law, freedom from arbitrary detention, liberty of movement, respect for family life, an adequate standard of living (including to access to basic humanitarian needs), medical care, access to legal remedies, possession of property, freedom of expression, freedom of religion, participation in public life, and education, as set out in Principles 10-23.

In several instances, the Guiding Principles specify how generally expressed rights apply in situations of displacement. These should be of particular interest to those designing and assessing domestic policies on internal displacement. For example, Principle 12 provides that, to give effect to the right of liberty from arbitrary detention, internally displaced persons “shall not be interned in or confined in a camp” absent “exceptional circumstances” and that they shall not be subject to discriminatory arrest “as a result of their displacement.” Likewise Principle 20 provides that the right to “recognition everywhere as a person before the law” should be given effect for displaced persons by authorities facilitating the issuance of “all documents necessary for the enjoyment and exercise of their legal rights, such as passports, personal identification documents, birth certificates and marriage certificates.”

The Guiding Principles provide for special consideration of the needs of women and children (including “positive discrimination” or affirmative activities on behalf of governments to model assistance and protection to their particular needs, consultation and involvement in decisions regarding their displacement and return or resettlement, protection against recruitment of minors and free and compulsory education), as well as for other especially vulnerable groups, such as the elderly and disabled.

What Rights and Obligations do Humanitarian Organizations Have?

The Guiding Principles also lay out a number of rights and obligations of humanitarian organizations in Principles 24-27. This section again stresses the point that “[t]he primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities” (Principle 25(1)). In carrying out this duty, national authorities must not “arbitrarily withhold” consent to international humanitarian organizations’ offer of services to the internally displaced, and must “grant and facilitate” their free passage to areas where assistance is needed. Humanitarian personnel, materiel, and supplies are not to be attacked or diverted for other purposes. For their part, humanitarian organizations must carry out their operations “in accordance with the principles of humanity and impartiality and without discrimination” and should “give due regard to the protection needs and human rights of internally displaced persons” and not just their needs for assistance.

What Help Should Displaced Persons Expect with Return, Reintegration and Resettlement?

In their final section, the Guiding Principles provide that competent authorities have “the primary duty and responsibility” to assist displaced persons by providing the means as well as by establishing conditions for return to their places of origin, or for resettlement in another part of the country (Principle 28). Any return or resettlement must be voluntary and carried out in conditions of safety and dignity for those involved.

As a corollary to the right to free movement, therefore, displaced persons have the right to return to their homes. Although the right to return or resettle is not expressly stated in any particular human rights instrument, this interpretation of the right of free movement is strongly supported by resolutions of the Security Council, decisions of treaty monitoring bodies, and other sources of authority.

Moreover, although the displaced have the right to return, Principle 28 carefully specifies that they must not be forced to do so, particularly (but not only) when their safety would be imperiled. The issue of the voluntariness of return or resettlement is recurrent in protracted displacement situations around the world. In many places, governments and insurgent groups have ceded to the temptation to use the return or resettlement of displaced persons as a political tool.

Principle 29 provides that authorities also have “the duty and responsibility” to assist displaced persons to recover “to the extent possible” their property and possessions, and where restitution is not possible to provide or assist the displaced persons to obtain appropriate compensation. Like the preceding principle, this one relies on general precepts of the right to property, the right to remedy for violations of international law, as well as a growing adherence in Security Council resolutions, treaties, national law and other sources of authority.

Are their Any Special Provisions for Women?

In the guiding principles a concerted attempt was made to prioritise gender issues. For example, while discussing groups that needed special attention in Principle 4 it was stated that expectant mothers, mothers with young children and female heads of households, among others, are people who may need special attention. In Principle 7 it was stated that when displacement occurred due to reasons other than armed conflict authorities should involve women who are affected, in the planning and management of their relocation. Principle 9 upheld that IDPs should be protected in particular against “Rape, mutilation, torture, cruel, inhuman or degrading treatment or punishment, and other outrages upon personal dignity, such as acts of gender-specific violence, forced prostitution and any other form of indecent assault.” Special protection was also sought against sexual exploitation. Principle 18 stated that special efforts should be made to include women in planning and distribution of supplies. Principle19 stated that attention should be given to the health needs of women and Principle 20 stated that both men and women had equal rights to obtain government documents in their own names.

Apart from the Guiding Principles there are other international mechanisms that displaced women can access. They include the 1979 Convention on the Elimination of All Forms of Discrimination against Women (hereafter CEDAW) and the 1999 Optional Protocol sets out specific steps for states to become proactive in their efforts to eliminate discrimination against displaced women. Article 2 of CEDAW clearly states that public authorities, individuals, organisations and enterprises should refrain from discrimination against women. Article 3 reiterated women’s right to get protection from sexual violence. Article 6 spoke against trafficking and sexual exploitation of women. Since most displaced women are particularly vulnerable to traffickers this article is of some importance to them. It must be noted that all the countries of South Asia are signatories to CEDAW with some reservations but not of the proportion that it negates the overarching principles and therefore the onus of being gender sensitive in their attitude and programmes is on them. Apart from these there are other international provisions that protect women’s human rights. Article 3 of the Geneva Conventions of 12 August 1949 calls for the halt of weapons against the civilian population and to protect all civilians, including children, women and persons belonging to ethnic and religious minorities from violations of humanitarian law. Article 29 of ILO 1930 Convention concerning forced or compulsory labour also impacts the situation of women. It calls for the end of violations of the human rights of women, in particular forced labour, abuse and torture of labourers including women.

Are the Guiding Principles Legally Binding?

Although the UN Guiding Principles on Internal Displacement is not a legally binding treaty it is formed of principles that are based on established legal mechanisms for aiding the human rights of the displaced people. Many of these Principles may gradually attain the status of customary international law. But as Francis Deng reminds us, “for the time being they serve as a morally binding statement.”[ii] A statement of this nature that promises to be ‘morally binding’ on a wide spectrum of primarily national governments and secondarily, other relevant international and non-governmental agencies must cut across the well-known divisions of the prevailing ethical and moral systems and elaborate itself in a way that it does not remain captive to any particular modality of moral reasoning. Plurality of such systems and modalities is helpful in building the much-needed ‘moral consensus’ around these principles.

While the Guiding Principles have already gained an impressive degree of recognition at the international, regional, and national level, more remains to be done to foster their use, particularly in South Asia, where many states with large displacement problems lack comprehensive policies or effective remedies for those. It is to be hoped that this booklet will itself encourage that process. South Asia has seen millions of people displaced both across borders and within borders – again both by conflict and by developmental projects, and in some cases by natural calamities. This booklet is intended to make a survey of how far the Guiding Principles on IDPs is relevant to each state of the region and how far they have been implemented and what remains to be done.

Whose Responsibility is it Anyway?

If the state-centric nationalistic approach has meant the exclusion of minorities and has produced large number of refugees in the post-colonial states in Asia and Africa, state-centric national security perspective and development paradigm have not done any better. The people displaced against this backdrop may have got some relief if they have been able to cross international boundaries. Crossing the international boundary may entitle them to “refugee” status, thus providing them at least a fig leaf of relief and rehabilitation in an alien land. But wretched are those who remain internally displaced. They remain at the mercy of the same state and administration whose policy might have sent them on the run. According to all estimates, the number of Internally Displaced Persons (IDPs) is rising compared to the refugees seeking shelter in another country. South Asia is no exception to this. But, so far, no systematic and comprehensive study was carried out. Only a few brief, and sometimes sketchy, reports and articles are available on the plight of the IDPs in South Asia. This booklet hopefully will fill that awesome and disturbing vacuum. The booklet is meant to explore the nature and the extent of displacement in respective countries of South Asia and provide recommendations to minimize the insecurity of the displaced by discussing mechanisms for rehabilitation and care. As for who takes responsibility for the displaced? The answer is primarily the state, although there are attempts on its part to abdicate its responsibility in this regard. None of the states of South Asia recognizes right against forced displacement as a non-negotiable right. We have to note that it is the policies of the state and the model of development and nation building that it has pursued since its birth that have caused and continue to cause displacement in largest numbers. It is primarily a failure of the state system. The booklet is meant to explore how far South Asian states are sensitive to the needs of the IDPs, how they can be made sensitive to these needs and whether the UN Guiding Principle are being adhered to, to any extent.

What is the way Ahead?

In their few years of existence, the Guiding Principles have in fact obtained a high level of recognition. When they were first presented in 1998, the Commission on Human Rights merely “noted” them and the intention of the Representative to use them in his dialogue with states. Over time, however, the language of regular resolutions in the Commission, the Economic and Social Council (ECOSOC) and the General Assembly has grown increasingly warmer. In 2003, for instance, both the Commission and the General Assembly “welcome[d] the fact that an increasing number of States, United Nations agencies and regional and non-governmental organizations are applying them as a standard, and encourages all relevant actors to make use of the Guiding Principles when dealing with situations of internal displacement[.]” They have also been acknowledged at the level of the Security Council, at international conferences, and adopted by the U.N. and wider humanitarian community as their standard.

The Guiding Principles have been well received by multi-lateral organizations at the regional level. They have been welcomed in resolutions, declarations and statements by organs of the Organization of African Unity (OAU) (now known as the African Union), Economic Community of West African States (ECOWAS), Inter-Governmental Authority on Development (IGAD), Organization of American States (OAS), Organization for Security and Cooperation in Europe (OSCE), the Parliamentary Assembly of the Council of Europe (CoE) and the Commonwealth.

Among states in South Asia, Sri Lanka has similarly relied upon the Guiding Principles in the formulation of its National Framework for Relief, Rehabilitation and Reconciliation. Likewise, civil society institutions have made increasing use of the Guiding Principles to assess domestic policy and practice concerning displaced persons. It is hoped that in the near future more states in South Asia will accept, adopt and adhere to the Guiding Principles regarding the internally displaced. To understand the relevance of the Guiding Principles a close study of the mechanism is imperative. This booklet is meant to be such a study. Its primary objective is to publicize the mechanisms available for the rehabilitation and care of IDPs in South Asia so that they can access rights and justice that are due to them

[i]Pradip Prabhu, “Tribals Face Genocide,” Combat Law: The Human Rights Magazine, Vol. 1, Issue 4 (October-November 2002) p. 73.
[ii] Francis Deng’s ‘Preface’ to Walter Kalin, Guiding Principles on Internal Displacement: Annotations (Washington DC: American Society of International Law, and the Brookings Institution ,2000), p. vi.

References

• Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das, Internal Displacement in South Asia.
• Addressing Internal Displacement: A Framework For National Responsibility
• Guiding Principles on Internal Displacement

Web-based

1. E-material: Protection of Internally Displaced Persons: Inter-Agency Standing Committee Policy Paper
2. E-e-material2: Sovereignty as Responsibility: The Guiding Principles on Internal Displacement/ Roberta Cohen
3. E-e-material3:An Overview of Revisions to the World Bank Resettlement Policy