INTERNALLY DISPLACED PEOPLE AND THEIR PROTECTION UNDER INTERNATIONAL LAW GIVEN COVID-19

AUTHORS:

Samkit Jain, NLU Jodhpur

Manav Bhagat, Nirma University

Subhadra, SOA National Institue of Law, Bhubaneswar

Rdhima Purwar, Symbiosis Noida

Apoorva Singhal, Ramaiah Institute, Bengaluru

J S Kaushalya, TNNLU

EDITOR: Varshita Girish, CAIL, Bengaluru



INTRODUCTION : According to the Guiding Principles on Internal Displacement, 1998, Internally displaced persons (IDPs) are "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 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"[1] Legal status has not yet been provided to the internally displaced people, the threshold to include various kinds of internally displaced people according to guiding principles on internally displaced people is: That their movement is not involuntary. Further, as they move within the boundaries of the nation, it also includes other habitual residents of the country who have been displaced, for example, a stateless person. The IDP also includes families who have been forced to leave away their houses due to armed attacks, bombardments when their government is responsible for displacing them. Residents of the poor neighbourhood who are forced to move away from their neighbourhood due to the impact of weather, geophysical or technological hazards in their neighbourhood. For example, Families who have been forced to leave their houses due to construction of a dam and other infrastructure projects by the government, Families who leave due to fear of harassment by local crime gangs, Families forced to leave due to climate change, other natural disasters etc. IDPs are entitled to all the rights and freedoms which normal citizens are entitled under international and national laws. According to the data released by the United Nations High Commission for Refugees that at the end of 2019 there were 45.7 million people who were internally displaced due to generalized violence or human rights violations according to Internal Displacement Monitoring Centre (IDMC).[2] Due to the recent outbreak of COVID -19 pandemic, many people have been forced to leave their houses due to non-availability of shelter, job, food, etc. The COVID -19 being a pandemic has not been included as a reason to displace people internally. This pandemic has forced majorly the migrant workers to leave their workplace and making it difficult for them to return to their natives.[3] This tough situation requires immediate actions by the national government to ensure that IDP’s are taken care of by making arrangements of shelter camps, food, testing facilities and ensuring social distancing while arranging all those. NEED FOR PROTECTION OF IDP UNDER INTERNATIONAL LAWS: Some many international laws and conventions protect the refugees, the most prominent one being the 1951 Refugee Convention of the UNHCR which lays down the definition of a refugee as well as the rights given to them and the country providing asylum. One of the prerequisites to qualify for a refugee is for that person to cross international borders, but what about those persons that are displaced within the country and do not cross international borders, this is when Internally Displaced Persons come into the picture. Internally Displaced Persons usually get displaced forcibly or flee voluntarily due to armed conflicts, violence, and violation of human rights, disasters (both natural and man-made) in their area of residence. A leading example could be the current COVID-19 situation wherein people are getting displaced due to various reasons. Displaced people are at a high risk of getting attacked physically as well as sexually. A majority of Internally Displaced Persons usually are constituted by women and children who are at a greater risk of being exploited. These people often fall victims to various forms of abuse and trafficking. As these people have lost their homes, land, livelihood, family and social networks, a range of their fundamental rights get violated. As they have lost all these, they should be provided basic shelter, food and heath-aid at the least for their survival. Furthermore, they should be provided with employment, education and other necessary factors that aid a livelihood.[4] UNHCR has set up Guiding Principles on Internal Displacement. It has also published a manual for law and policymakers for the protection of Internally Displaced Persons in 2008. The Global Protection Cluster, a group of non-governmental organisations under the UNHRC has also published a handbook for the Protection of Internally Displaced Persons in 2010. Though these are some welcome measures, more measures need to be taken to protect these persons as all of these are the only directory in nature and not mandatory. The international community plays a huge role in assisting these people by various means. At the international level, all the organisations need to come forwards and work with the countries to protect Internally Displaced Persons. HOW ARE IDP DIFFERENT FROM MIGRANTS AND REFUGEES : Internally displaced persons are the ones who have been forced to leave their home to escape violence, conflict, human right violations, and natural disasters, unlike refugees who cross borders to find safety. IDPs leave home but stay in their own country. There are over 40 millions IDPs worldwide. They are often out of reach for humanitarian aid and assistance. However, there is no legal definition of internally displaced persons. IDP is under the jurisdiction of their government. Millions of people leave their homes all around the world in search of a better future for their family. Some are migrants. Some are refugees. Someone who has been forced to flee his home to escape violence, prosecution and conflicts are called a refugee. Refugees are defined and protected in international law. They have a right to be protected by the country. They can't be sent back home because their life or freedom would be at risk. Asylum seekers are the ones who want international protection from the danger in their own country. Every asylum seeker will not be granted refugee status. On the other hand, a migrant is someone who chooses to move by himself and many of them move back to their home after a few years. Some of them move to find better opportunities and some of them move for education. Migrants are not forced to leave their home. Immigrants are those who willingly leave their country and granted permission to live in another country. Their reasons can be economic growth or better education.


INTERNATIONAL LAW RELATING TO IDP’S:

The International law in the relation to Internally displaced people does not have a universal, legally binding instrument when referred to The Refugee Convention 1951 [5]which had specifically addressed the issue of these people. Even though there is no as such binding legislation for them these people are protected by the International human rights law and domestic law and, in case of any armed conflict, they are in the shelter of the International humanitarian law (IHL).

The UN Guiding Principles on Internal displacement have brought support from the international community and various countries have also incorporated them in their domestic law. Many rules present in this guiding principle have been taken up from the International human rights law and International humanitarian law.

Under the ambit of International humanitarian law, these people are protected from and during the displacement as civilians with the application that none of them took part directly for the hostility caused. The law plays an important role to prevent the displacement at the first place expect when the reasons include military interjection and security of the civilians is a concern. There are various provisions in the International humanitarian law governing the conduct of these hostilities, which is important for the protection of the civilian population and whose violence often triggers displacement.

While there have been enormous advances since the drafting of these principals 1996, some gaps were not filled yet as the fact that non-state actors are not bound by the UN Convention and International humanitarian law and the option of derogation from human rights that were identified then are still apparent.


RECENT DEVELOPMENTS:

The Guiding principles regarding the protection of such people have been strengthened by the recent developments in the legal field. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights have been widely accepted and ratified by more than 160 countries.

In case of armed conflict, unlawful deportation or transfer is considered to be a crime against humanity, if it is directed against a civilian population, even in case of unarmed conflict is considered to be a war crime, owing to the adoption of the Rome Statute of the International Criminal Court.

The International Criminal Tribunal for the Former Yugoslavia has interpreted the term ‘forced’ to include the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment. [6]


RESPONSE TO COVID-19:

UN Agencies and NGOs have led from the front and laid down guidelines and measures that need to be followed for the protection of these people. The UN Human Rights Officials have mandated that emergency responses to the coronavirus must be proportionate, necessary and non‑discriminatory. Keeping in mind the needs of the people in the wake of the pandemic, the UNHCR has warned the states against any actions which deny these people an opportunity to seek international protection.

The Inter-Agency Standing Committee has launched a joint effort program with a budget of USD 6.7 Bn to complement the actions of other institutions such as the International Red Cross. This is focussed to address the needs of the IDP and protect them from any violence or discrimination. Moreover, the IASC guidelines have to be followed by camps and camp-like settings. Recognising the monetary needs, 171 countries have introduced hundreds of social protection measures, which are inclusive of IDP to ensure that forcibly displaced people have a means of income.

Examples

The government of Burkina Faso has launched a protective strategy against the pandemic which integrates displaced people as well.

The government of Jordan has launched and extended an extensive healthcare program to cater to the Covid-19 affected families, inclusive of vaccinations and secondary benefits for the refugees.

The UN wing catering to the needs of Palestinian refugees has tackled the pandemic situation by determining 8 priority areas and focusing their efforts in these areas.

IMPLICATION OF INTERNATIONAL HUMANITARIAN LAW :

IDPs as part protected by a compass of laws as well as International humanitarian law, Refugee law, International human rights law, and in fact, The national law of the state concerned.

War has not stopped because of the pandemic disease COVID 19 and our work protecting and assisting victims of conflict during this period is essential: both stepping up our response to this virus and continuing to provide humanitarian relief and protection to communities for whom this is just one additional threat.[7]

It is pivotal that IHL is respected to respond adequately to the needs of communities, health professionals and authorities during this time. These provisions include medical personnel, transport, water, Humanitarian relief, detainees, IDPs, refugees, migrants, asylum seekers; children and education and other respective measures.

COVID 19 represents a dramatic new threat to life in war-torn countries. International humanitarian law (IHL) is the key legal framework that provides crucial safeguards to people affected by armed conflicts. It protects persons who are not participating in the hostilities and restricts the means and methods of welfare. Populations in armed conflict, weakened by years of fighting, destruction, erosion of basic services, and displacement, are particularly vulnerable to the spread of COVID 19 within the current pandemic. Many of them rely on humanitarian relief for their survival: displaced persons, detainees, and populations underneath or bring to an end from basic services. IHL protects those people and it believes that these protections offer crucial safeguards that must continue to be respected during this COVID 19 time.

The impact of international humanitarian law on Internally displaced persons, migrants, asylum seekers and refugees are particularly exposed to outbreaks of COVID 19, given their frequently harsh living conditions and restricted access to basic services as well as health care. Displaced civilians are entitled to shelter, hygiene, health, safety and nutrition. People facing outbreaks of COVID 19 in camps may aim to move to safety, leading local populations and/or authorities to react forcefully to contain them, including by turning the camps into isolated detention centres. IHL protects all civilians against the consequence of armed hostilities and arbitrary deprivation of liberty and provides for their access to health care without discrimination.


CONCLUSION

This challenging and unprecedented time requires swift and immediate actions to be taken to redress the problems faced by the IDP’s. While a lot has been done to raise awareness of the plight of IDPs, we have no cause for complacency. Most displacement which had occurred in the last few decades could have been prevented in the first place if the parties respected the laws of war. Those obliged to flee would suffer less if the parties respected the displaced as civilians of their own rather treating them as outsiders. Sadly, not much has improved in this area. Humanitarian action can bring some relief but it is up to the parties to conflicts to respect and protect civilians.

The donations have been flowing in continuously and even monetary institutions such as IMF and World Bank have increased their lending capacities for low-income and emerging countries to USD 100 & 160 Bn respectively. But the fact of the matter remains that the number of people dependent on assistance for healthcare is so high that the healthcare institutions need financial help even more. Thus there is a need to build capacity to support these systems through grants and concessions.

International humanitarian law plays a crucial role for all people living in this world. As for Internally displaced people in the period of COVID 19 where people are struggling with in their countries boundaries with staying in camps without proper health care, no food water and basic service and for this pandemic they especially need hygiene places which were not available to them. In that period IHL gives its implications and provides them with some basic needs and helps them out with such conflict.

[1] Guiding Principles on Internal Displacement, 38 International Review of the Red Cross 545-556 (1998). [2] United Refugees, Internally Displaced People UNHCR (2020), https://www.unhcr.org/internally-displaced-people.html (last visited Jul 12, 2020). [3] Donald Kaberuka et al., COVID-19 makes addressing internal displacement even more urgent Aljazeera.com (2020), https://www.aljazeera.com/indepth/opinion/covid-19-addressing-internal-displacement-urgent-200525080109674.html (last visited Jul 12, 2020). [4] United Refugees, Refworld | Handbook for the Protection of Internally Displaced Persons Refworld (2020), https://www.refworld.org/docid/4790cbc02.html (last visited Jul 12, 2020). [5] United Refugees, The 1951 Refugee Convention UNHCR (2020), https://www.unhcr.org/1951-refugee-convention.html (last visited Jul 12, 2020). [6] Case Matrix Network, Casematrixnetwork.org (2020), https://www.casematrixnetwork.org/cmn-knowledge-hub/elements-digest/art8/e/8-2-e-vi-3/3/ (last visited Jul 12, 2020). [7] COVID-19: How IHL provides crucial safeguards during pandemics, International Committee of the Red Cross (2020), https://www.icrc.org/en/document/covid-19-how-ihl-provides-crucial-safeguards-during-pandemics (last visited Jul 12, 2020).

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