Internal displacement as a result of natural disasters

For over a decade, the humanitarian crises posed by the scope of internal displacement have engaged the attention of the international community. The appointment in 1992 of a Representative of the Secretary-General on internally displaced persons, Francis Deng, marked the commencement of a decade of sustained attention to developing solutions to the challenge of internal displacement. The Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2) emerged as a basic normative framework, applying the provisions of international human rights and humanitarian law, as well as refugee law by analogy, to victims of internal displacement. At the same time, the Representative was pivotal in advocating for the rights of internally displaced persons (IDPs), particularly through country missions and other visits, and in advancing the institutional “collaborative response” of the United Nations and its specialized agencies as the only possible answer to the broad spectrum of IDPs’ needs.

The Commission on Human Rights, in its resolution 2004/55, set out the framework of a new mandate of a Representative of the Secretary-General on the human rights of internally displaced persons. It gave a specific human rights focus to the mandate, inviting the Representative to engage in coordinated international advocacy and action for improving protection and respect of the human rights of persons who have become internally displaced. In September 2004, Walter Kälin was appointed to the mandate. Further to the Representative’s report to the Commission on Human Rights in 2005 (E/CN.4/2005/84 and Add.1), the present report describes the activities that he has engaged in since his appointment. Building on the report of the Secretary-General on the reform of the United Nations, the Representative sets out the main conclusions and outcomes of his country missions and working visits to Turkey, Nepal, Croatia, Bosnia and Herzegovina and Serbia and Montenegro undertaken up to August 2005.1 He then addresses human rights issues raised by the internal displacement caused by the unprecedented tsunamis of 26 December 2004.

The present report is submitted pursuant to Commission resolution 2005/46 and General Assembly resolution 58/177.

In his 2005 report entitled, “In larger freedom: towards development, security and human rights for all” (A/59/2005 and Add.1-3) the United Nations Secretary-General advanced his view of the fundamental and profound interrelationship between development, security and the practical enjoyment of human rights by all persons. In the context of the challenges facing a changing world, the Secretary-General noted that since the adoption of the Millennium Declaration over 40 countries had been scarred by violent conflict. In concrete terms, he pointed out that the number of internally displaced people stood at roughly 25 million, nearly one third of whom were beyond the reach of United Nations assistance. These persons stood alongside the global refugee population of over 9.2 million.

The Secretary-General stressed that, in addressing a globally interconnected challenge such as that posed by IDPs, it was in each country’s self-interest that all situations of displacement be addressed effectively. That required broad, deep and sustained global cooperation between States. In his assessment of the humanitarian response system of the United Nations, the Secretary-General emphasized that, unlike refugees, who had crossed an international border, those displaced within their own countries were not protected by a specific instrument. Yet those acutely vulnerable persons and their needs often fell between the mandates of the various humanitarian bodies, although their rights seriously needed to be protected. In order to address this problem, the Secretary-General urged Member States to accept the Guiding Principles on Internal Displacement as the basic international norm for the protection of such persons, and to commit themselves to promote the adoption of these principles through national legislation. With regard to the institutional response of the Organization, the Secretary-General stressed that while steps had been taken to ensure that agencies provided assistance to such groups within their respective areas of competence, more was needed for an effective collaborative response. With the support of Member States, he thus intended to strengthen further the inter-agency response to the needs of IDPs, under the global leadership of his Emergency Relief Coordinator, and at the country level through the humanitarian coordinator system.

The Representative on the human rights of internally displaced persons fully shares the Secretary-General’s assessment concerning the nature of the challenge posed by internal displacement and the urgent need for creative and durable solutions on the part of Member States and the United Nations to address the critical humanitarian and human rights issues involved. In particular, the Representative stands with the Secretary-General in commending the Guiding Principles on Internal Displacement as the basic international norm for addressing the issue of internal displacement, recalling that they reflect and are consistent with international human rights, humanitarian and analogous refugee law, and were drawn up to address the specific needs of IDPs. The Representative has continued to take the Guiding Principles and the international instruments that underpin them as the touchstone for all his activities undertaken pursuant to his mandate. In particular, he has started work that will lead to a manual for domestic legislation and policymaking with regard to IDPs to assist Governments in implementing the Guiding Principles at the domestic level.

As regards the need to improve the collaborative response to situations of internal displacement, the Representative welcomes current efforts to assign responsibility for specific sectors such as camp management, water and sanitation, health and others to designated agencies in order to strengthen accountability within the framework of the collaborative approach. He also welcomes the initiative to designate an agency with primary responsibility for the protection of the rights of IDPs at the operational level. He stresses, however, that it would be important to ensure that the notion of protection is comprehensive, covering all relevant human rights and humanitarian law guarantees and thus responding to the whole spectrum of the needs of IDPs. The Representative refers in this context to his more detailed discussion of protection in his report to the Commission.2 Assigning primary sectoral responsibility for protection to one agency should not be understood as precluding protection activities of other actors; rather, in order to ensure full protection of IDPs, close cooperation between the different agencies and actors will be necessary. Finally, the Representative feels that his mandate to focus on advocating for the human rights of IDPs, mainly through dialogue with Governments and other relevant actors, and on mainstreaming the human rights of the displaced into all relevant parts of the United Nations system, would not duplicate but usefully complement the activities of the agency primarily responsible for protection activities at the operational level, and he plans to closely coordinate and cooperate with it.

The Representative’s individual mission reports on each country will, consistent with past practice, be annexed to his report to the Commission on Human Rights at its sixty-second session. In this report to the General Assembly, the Representative seeks to present his overall conclusions and main recommendations. During each mission, the Representative met with senior governmental officials, a wide array of relevant international and national actors, and IDPs themselves. In some cases, he travelled extensively within the countries in order to gain a first-hand impression of the situation of the IDPs. All missions and working visits proved to be most fruitful and augured well for continued collaboration with the Governments concerned, to which the Representative has consistently reaffirmed his commitment.

In conjunction with the Internal Displacement Division of the Office for the Coordination of Humanitarian Affairs (OCHA-IDD), the Representative conducted a mission to Nepal from 13 to 22 April 2005, at the invitation of the Government. The main objectives were to assess the situation of displacement in Nepal and to make recommendations to the national authorities and other relevant actors on how best to address the protection needs of IDPs.

From the information available to the Representative, he concluded that in addition to recurring small-scale displacement owing to natural disasters, a widespread pattern of conflict-induced displacement had emerged, next to and obscured by the traditional economic migration that Nepal has known historically. The reasons leading to this displacement are complex and encompass direct acts of violence or threats that have been made to the displaced personally; confiscation of property; fear of reprisals for refusing to let their children be forcibly recruited or to contribute food and money; fear of being caught in the crossfire or subjected to reprisals by the Royal Nepalese Army, especially given the emergence of local vigilante or self-defence groups; a general feeling of insecurity and uncertainty; the conflict-induced collapse of local structures and coping mechanisms within villages; and economic reasons, although it can be argued that the economic decline in the traditionally poorer areas of Nepal has been exacerbated by the conflict. While violence by Maoists may seem to be the principal cause of displacement in Nepal today, it is not the only one.

The Representative expressed his concern over the emergence and activities of vigilante or self-defence groups and the ensuing retaliation by Maoists, which in turn caused mass displacement. He was troubled that in the past some of those groups had received the tacit or explicit support or acquiescence of politicians, ministers and other State actors, given without taking into consideration the danger to which people were being exposed. He was particularly worried that this behaviour could have a spiral effect and turn the conflict into a full-fledged civil war, as had happened in other contexts.

Most of the people whom the Representative met agreed that a large but unknown number of people had left their homes involuntarily and were unable to return for the reasons mentioned. There was general agreement that the actual number was higher than the official figures. Indicators of this were, among other things: entire villages without younger generations; the outflow of entire families in large numbers into India; and the increasing number of empty houses in large areas of the countryside, indicating that, unlike in traditional economic migrations, no family members had been left behind.

Many of the Representative’s interlocutors concurred that fewer displaced persons had found refuge inside Nepal than had gone abroad. The Representative reminded the authorities that, as is invariably the case in situations of internal displacement, determining actual numbers of IDPs was inherently difficult owing to their very displacement. In the case of Nepal, he pointed out the following possible obstacles to the registration of the IDPs: the fear of being recognized or identified; the lack of any benefits to be gained from registration by the State as an IDP; the slow procedure of verification by local governments in places of origin; and the limited definition of IDPs, which made it difficult for State civil servants to register IDPs who were not victims of Maoist violence.

Through his discussions with IDPs, and also with aid organizations and certain local authorities, the Representative concluded that the main problems and needs faced by IDPs were security and protection; discrimination; food, shelter and health; access to education for children; documentation; sexual abuse and increased domestic violence; risk of increased female prostitution; risk of increasing child labour; and denial of voting and electoral rights in forthcoming elections.

The Representative underlined that being an IDP did not necessarily mean that one was in need of humanitarian assistance such as food or shelter in camps. Depending on where they came from and their possibilities for integrating in their host communities and maintaining their own coping mechanisms, they did not always need humanitarian relief or aid. However, on some occasions when emergency aid had been provided, it had been inadequately and haphazardly done. There was no coherent assistance and protection response in place, either from the Government or from the national or international organizations. The Representative pointed out that the creation of camps or settlements that quickly became slums was to be avoided as far as possible, since they constituted, among other things, a health and increased security risk for IDPs. In some cases such facilities were unavoidable, but in others, integration with the local host communities should be encouraged by means of incentives.

Furthermore, in certain rare cases, a return to the IDPs’ places of origin could be envisaged, providing that both parties to the conflict agreed and guaranteed their security and safe return and if appropriate monitoring mechanisms, for instance through the United Nations Human Rights Monitors or local non-governmental organizations (NGOs) were put in place. In these cases, IDPs might also need reintegration assistance. In the case of protracted displacement, new employment opportunities and land entitlements had to be created in order to enable the IDPs to become self-sustaining as soon as possible. The Representative concluded that although Nepal was not facing a humanitarian crisis in the classic sense of the term, there were grounds for serious humanitarian and human rights concerns.

In light of this analysis, the Representative made a series of recommendations. He welcomed the fact that the Government of Nepal was in the process of developing an IDP policy, but was aware that it had limited means and that addressing the protection and assistance of the IDPs in an adequate manner would take far more resources. He recommended that the Government continue and finish as soon as possible a national and comprehensive IDP policy with a broad definition of internally displaced persons that does not focus solely on certain victims of violence, in line with the Guiding Principles; condemn the emergence of self-defence or vigilante groups and discourage them from taking the law into their own hands; respect the distinction between combatants and non-combatants and plan military operations so as to avoid collateral damage to civilians as far as possible; amend the laws to facilitate the registration process, including for electoral purposes; train national and local authorities and officials, both civilian and military, on the rights of IDPs and the protection of the civilian population; facilitate access of national and international aid organizations to areas where IDPs gather.

The Representative recommended to the United Nations and the donor community that, in collaboration with the Government, they draw up a comprehensive response strategy to respond to the human rights and humanitarian needs of IDPs, encompassing prevention of displacement, protection during displacement and finding long-term solutions in consultation with displaced persons. The United Nations and the donor community should further ensure that the newly established United Nations human rights field operation in the country monitors and addresses human rights situations which could lead to conflict-induced displacement, and also monitors the return of IDPs to their places of origin. Finally the Representative called on the Communist Party of Nepal (Maoist) (CPN-M) to respect the basic principles of international humanitarian law, in particular the fundamental distinction between combatants and non-combatants and common article 3 of the Geneva Conventions, of 12 August 1949, and to make a public commitment to adhere to the Guiding Principles on Internal Displacement, which also addresses non-State actors.

From 8 to 24 June 2005, the Representative undertook, at the invitation of the Governments concerned, country missions to Croatia, Bosnia and Herzegovina and Serbia and Montenegro, including Kosovo. In the Representative’s view, a confluence of historical and contemporary events made the current time an appropriate one in which to assess the progress made in the region towards addressing the very large numbers of IDPs emerging from the armed conflicts of the 1990s and ensuring durable solutions for the future. While much has been achieved in the area of internal displacement, there still remain outstanding issues to be addressed.

The Representative emphasizes that considerable progress has been made in reducing the number of IDPs in the region and moving towards durable longer-term solutions. The efforts invested by the States concerned, the wider international community, agencies of the United Nations, other intergovernmental bodies as well as civil society at both the national and international levels have indisputably gone a long way towards addressing the IDP challenge which was posed in such formidable terms a decade ago. While the rate of progress has at times been uneven and varied from State to State, with Kosovo showing particularly low numbers of returnees, the overall trend is unmistakably positive. The often more visible efforts to resolve refugee issues have also had a positive impact on the IDP populations in certain circumstances.

Progress made in the area of return. In the entire region, the international community has put emphasis on creating conditions conducive to the return of those displaced in the immediate aftermath of the conflicts in Croatia, Bosnia and Herzegovina and Kosovo. A successful return of IDPs is based on three elements: ensuring the safety and security of returnees, returning property to the displaced and reconstruction of their houses, and creating an environment that sustains return, that is, which allows life under normal conditions in the area of return. National authorities at all levels and the international community have achieved impressive results.

Notwithstanding some security concerns, the first element is basically in place throughout the region, except for Kosovo where, despite progress in recent months, the situation continues to be uncertain and many displaced persons therefore hesitate to return.

The second element is on the way to full realization in Bosnia and Herzegovina where restitution of property has been achieved in almost all cases and only a small number of disputes remain unsolved; however, a large number of houses and apartments need repair or reconstruction. Croatia has almost finished returning houses and apartments to the remaining persons displaced inside the country or providing them with alternative accommodation; however, cases remain of owners being prevented from repossessing their property. In Kosovo, ownership has been clarified in most cases but most properties have not yet been repossessed by their owners, and resources necessary to repair and rebuild accommodations are often insufficient.

The third element, the conditions for a sustainable return, is the biggest challenge for IDPs. The lack of such conditions is one of the main obstacles to return and has caused the overall rate of returns in many parts of the region to slow down. Even in areas where substantial resources have been invested to enable the return of IDPs, significant questions as to the long-term durability of the situation remain. There are many cases where returnees have left again after a short while, or where only the elderly, but not families with children, have returned. Obstacles to sustainable return include prolonged and unjustified delays in connecting reconstructed houses of minority returnees to water and electricity; discriminatory practices in denying minority returnees access to jobs in public service and private employment; unavailability of schools responding to the language and other educational needs of returnees; problems with access to pensions and health insurance in case of return; provocative use of national and religious symbols by some local authorities, making minority returnees feel unwelcome and discriminated against; a weak rule of law, especially at the level of certain municipalities; the unwillingness of police authorities in some places to investigate incidents of harassment; a weak and overburdened judiciary; and continuing impunity for war crimes and crimes against humanity. Thus, many returnees face specific difficulties relating to insufficient respect for their human rights. The Representative calls on the authorities of the countries concerned, as well as the international community, to address these problems vigorously.

Focus on return as an obstacle to local integration. The efforts of the international community and national authorities have been focused almost exclusively on return. Consequently, local integration, allowing IDPs to integrate into the local economy and to gain access to housing outside collective shelters, has been neglected or even discouraged, even though it has occurred in numerous cases. While the Representative acknowledges the importance of highlighting return in the region, he would like to stress that allowing internally displaced persons to integrate locally and live a normal life and their return to their places of origin are not mutually exclusive, but actually reinforce one another. Well-integrated people are more apt to lead productive lives; this is likely to give them the strength and the impetus necessary to return to their places of origin, once the time is right. Experience from other contexts has shown that the quicker displaced persons resume productive lives, the more likely they are able to exercise free choice, which can mean return, even if it entails facing new challenges.

Urgent needs of most vulnerable groups. The Representative was struck by the disproportionately high percentage of particularly vulnerable groups among IDPs, whose situation has still not been satisfactorily resolved. These groups include the elderly, the ill, the disabled, severely traumatized individuals, witnesses in war crimes investigations and trials, female headed households, families of missing persons, and members of minorities, including Roma. Many IDPs belong to several of these categories at the same time. In this case, their disadvantage is exacerbated and becomes particularly acute. Typically, these extremely vulnerable persons remain in collective centres, informal settlements or in other arrangements which were never conceived as providing long-term solutions. These persons are often not capable of living on their own. Even in the event of dramatic changes, they are unlikely to return to their places of origin on their own. The Representative therefore recommended that national and local authorities, in coordination with international agencies and donors, urgently seek durable solutions for these persons, including appropriate institutional arrangements such as social housing, foster families or homes. After his return, he brought this matter to the attention of OCHA, UNICEF, the World Bank and bilateral donors.

Deteriorating accommodation. Thousands of IDPs continue to live in collective centres in very difficult conditions. The international community has withdrawn its support from many of these centres and no more money has been invested in their maintenance. Many buildings are ramshackle and no longer offer acceptable living conditions. Irregular settlements have sprung up where displaced Roma, Ashkali and Egyptians live in misery. The Representative therefore recommended continuing with the closure of the collective centres, provided adequate housing solutions for their populations can be found, and undertaking the most urgent repairs in those centres that cannot be closed now. In Kosovo, the Representative urged the immediate evacuation of the mostly Roma families affected by lead poisoning in camps in northern Mitrovica in a way that affects their right to health and physical integrity and welcomes the steps taken in this regard by the United Nations Interim Administration Mission in Kosovo (UNMIK) since his visit.

Lack of awareness of rights, coupled with administrative obstacles. Many IDPs are marginally aware of the rights to which they are entitled, both under domestic and international law. Others are unable for practical reasons to access entitlements and remedies provided in Government offices. These disadvantages are coupled with local administrative systems which too often have cumbersome and complex requirements, particularly in the area of documentation and registration. This frequently results in aggravated helplessness, disorientation and disempowerment suffered by IDPs, who become even more firmly locked into their existing situations. Obstacles to access to health care, education, social security benefits and other State services or to the labour market can easily become insurmountable. Since there seems to be no social safety net for those who fall outside the system, those who have not managed to get into the system, owing to the burdensome administrative practices, are further marginalized and pushed into the informal economy. The Representative thus recommended accelerating administrative reforms with a view to simplifying the administrative registration requirements and processes for all people. He underlined that particular attention should be paid to the additional difficulties IDPs have to face when trying to regularize their situation.

Discriminatory practices with respect to minorities. The Representative encountered practices that discriminated against Roma and other minorities. Members of these groups frequently have had problems providing proof of their origin. Especially in Serbia, they often have been thwarted in trying to establish a legal address, or otherwise denied access to adequate information on legal and practical options available to them and ways of exercising these possibilities. As a result, these minorities are marginalized and vulnerable and are exposed to the further risk of discriminatory treatment by local authorities and other parts of society. The Representative called upon national and local authorities to ensure that members of minorities can meaningfully exercise practical and legal access, on an equal basis, to the entitlements which exist. In doing so, it is important to sensitize authorities to the particular needs of these groups, as well as inform such groups, in a culturally appropriate fashion, of their rights and entitlements, and how these may be realized.

Safeguarding the future. For the region, important decisions lie in the short- to medium-term future and are already under debate in various forums. These include questions of accession to the European Union by Croatia and Bosnia and Herzegovina. The continuation of the current federated State of Serbia and Montenegro may soon require a definitive resolution, and the long-term status of Kosovo is increasingly under discussion. Given these developments, the Representative considered it important to identify those factors and risks which may affect the rights of the IDPs in the region and to identify issues which will need to figure in the arrangements that are struck by and between States in each of these areas in order to avoid new problems for the displaced. It is key that the new arrangements do not create new IDPs; safeguard the rights of the displaced, including to return, to protection of their property and its restitution or compensation, and to pension benefits; and take measures to make sure that no internally displaced persons become stateless. Furthermore, the number of remaining internally displaced persons should be reduced by achieving durable solutions, once the final status of the relevant regions and States is decided.

Finally, the Representative took note of the concerns expressed to him by many interlocutors that the massive return of former refugees or rejected asylum-seekers from certain Western European countries would add to the burden caused by internal displacement in the different parts of the region, particularly if they were not able to return to their homes. He appeals to the Governments concerned to implement such returns cautiously. He further urges them to refrain from returning members of threatened communities and particularly vulnerable persons to situations where they would risk becoming internally displaced persons without the necessary assistance and protection of their rights.

The Ministry for Foreign Affairs of Turkey invited the Representative to Ankara for a working visit from 4 to 6 May 2005. Apart from meetings with relevant ministries and State institutions, he attended a workshop on the “Turkey Migration and Internally Displaced Population Survey” organized by the Hacettepe University Institute of Population Studies in Ankara, and participated in a training workshop on the Guiding Principles on Internal Displacement for deputy governors and other officials conducted by the Norwegian Refugee Council and co-sponsored by the Brookings-Ben Project on Internal Displacement. All meetings were informative and constructive. The Representative was impressed by the willingness shown by his interlocutors to approach the issue of internal displacement with an open mind, to develop a strategy that addresses all obstacles to return in a comprehensive manner, and to provide the necessary means to ensure a successful implementation.

In the Representative’s view, the activities and envisaged steps were important as many of the IDPs had been or were still living in urban areas in conditions of extreme poverty with limited or no assistance from authorities. In the past, some of them had faced obstacles to return. Although the Government had pursued return programmes, including the Return to Village and Rehabilitation Project, with considerable success in some areas, overall progress had been slow and many problems remained to be solved. In this context, current efforts such as the study presently being undertaken by the Institute of Population Studies of Hacettepe University, ongoing efforts to prepare an “Integrated Strategy Document on IDPs in Turkey”, and the implementation of Law No. 5233 on the Compensation of Losses Resulting from Terrorist Acts and the Measures Taken Against Terrorism were very positive and of the utmost importance.

The Representative recommended to the Government that it use in its laws and policies a definition of “internally displaced person” that was in line with international standards as laid out in the Guiding Principles on Internal Displacement, reflecting the two core elements, i.e. the involuntary nature of the movement, whatever the reasons, and the fact that the persons concerned remain inside their own country.

Concerning the number of IDPs, the Representative took note both of the official figures given to him as well as of the much higher estimates by non-governmental organizations. He was also aware of the complexity of identifying the number of IDPs in Turkey owing to the nature and magnitude of economic migration from the rural areas in eastern Turkey to the cities and the western parts of the country, and to the fact that a considerable number of IDPs had either returned or no longer regarded themselves as IDPs, having started a new life elsewhere in Turkey. However, experience has shown that in situations like Turkey the number of those registered was often much lower than the real figure. The Representative commended the Government of Turkey for having asked the Institute of Population Studies to prepare a study on the number and the situation of IDPs in Turkey as an important contribution to a discussion on and the solution of internal displacement in Turkey.

Concerning the draft “Integrated Strategy Document on IDPs in Turkey”, the Representative welcomed the assurances given to him by the authorities that this document would reflect the Guiding Principles on Internal Displacement to a considerable extent and suggested that an explicit reference to the Guiding Principles be made in its final version. He also welcomed the fact that the strategy was to be based on the basic principle that IDPs had the choice to voluntarily return to their former places of residence or to integrate in another part of the country. The willingness to address potential obstacles to return such as the perceived role of village guards or the presence of landmines was also very important, as was the readiness to devote the necessary resources for the reconstruction and upgrading of the required infrastructure. While the plan to provide support mainly to centrally located villages might be sound from a development perspective, great care would be necessary to make sure that returnees still had access to their fields and their livelihoods. In this regard, the Representative recommended close consultation with returnees in order to avoid a situation where IDPs, despite the reconstruction of infrastructure and houses, would not return because they were cut off from their lands. It was also advisable to address — together with the problem of urban poverty affecting other persons — the living conditions of those IDPs who opted to remain in urban areas but whose living conditions were extremely poor.

Finally, the Representative observed that the application of Law No. 5233 on Compensation was important and the work begun by the Damage Assessment Commissions encouraging. He fully supported the extension of the deadline for applications by one year since many of those entitled to receive compensation, many of whom are IDPs, may need more time to prepare them. He worried about the high number of unsuccessful applications and highlighted the importance of the compensation mechanism not only for the IDPs who planned to return but also for those who wanted to remain in their present homes or resettle in another part of Turkey: in many cases, compensation would enable them to start a new life.

From 27 February to 5 March 2005, the Representative undertook a working visit to Colombo, and Bangkok, with the consent of the Government of those States, to attend a number of working meetings and seminars on the protection of IDPs with a particular focus on the response to the tsunamis of 26 December 2004. The main objective of the visit was to discuss with various actors from this region affected by the tsunamis the human rights situation of persons displaced by the tsunamis, and to identify and recommend next steps to ensure better protection in the international, regional and national response to this and other natural disasters. The visit was particularly timely as the response was shifting from the immediate humanitarian emergency phase to the recovery and reconstruction phase.

The Representative had an opportunity to examine the challenges of protecting the human rights of internally displaced persons in the context of natural disasters. He concluded that (i) displaced persons, in fact, may experience human rights problems in situations of natural disasters; (ii) the Guiding Principles on Internal Displacement are applicable to such situations and provide appropriate guidance in addressing the protection needs of those displaced due to disasters; (iii) there is a need to monitor the human rights of persons displaced by natural disasters during the emergency as well as the reconstruction; (iv) the international community needs better preparation to address the human rights challenges posed by natural disasters.

The tsunamis of 26 December 2004 left in their wake more than 300,000 people killed, 500,000 injured, countless missing, and more than 1 million IDPs, mostly in South and South-East Asia, but also in parts of East Africa. In the immediate aftermath of the disaster, efforts focused, as might be expected, on search and rescue, bringing clean water, food, clothing, medical care and shelter to survivors, and identifying and burying the vast number of dead. The response, local to global, in addressing these emergency needs was unprecedented.

The Representative found that much less attention had been devoted to issues of human rights protection, such as unequal access to assistance, discrimination in aid provision, enforced relocation, sexual and gender-based violence, recruitment of children into fighting forces, loss of documentation, safe and voluntary return or resettlement, and issues of property restitution, which had also arisen and needed to be addressed in the context of the tsunamis. The experiences of natural disasters in other parts of the world showed that there is a risk of human rights violations when displacement lasts and the displaced cannot return to their homes or find new ones after some weeks or months. In the context of natural disasters, discrimination and violation of economic, social and cultural rights tend to become more entrenched the longer the displacement lasts. Often, these violations are not consciously planned and implemented but result from inappropriate policies. The Representative found that they could easily have been avoided if the relevant human rights guarantees had been taken into account from the beginning.

Members of civil society participating in the Asian Civil Society Consultation on Post-Tsunami Challenges (13-14 February 2005) listed as major areas of concern: the transparency and accountability of funds raised and received; the need to place people before corporate interests; the required synergy and cooperation based on humanitarian principles of neutrality, impartiality, universality and non-discrimination; and the importance of empowering local communities and NGOs. They stressed the need for a rights-based approach to humanitarian assistance that would include in particular the application of international human rights norms and standards, particularly the right to participation, the right to livelihood (food, health, housing, etc.) and non-discrimination (against minorities, marginalized people, women, children and so on).

That these and other protection concerns emerged in the aftermath of the tsunamis underscored that it is just as important to examine and address situations of displacement through a “protection lens” in the context of natural disasters as it is in cases of displacement due to armed conflict. Indeed, doing so is essential for a comprehensive and effective humanitarian response.

The Guiding Principles on Internal Displacement recognize that persons forced to leave their homes share many common types of vulnerability regardless of the underlying reasons for their displacement. Thus, the Guiding Principles use a broad notion of “internally displaced persons” as persons “forced or obliged to flee or leave their homes or places of habitual residence” for an array of reasons including “natural disaster”. Although the major human rights treaties upon which the Guiding Principles are based do not directly refer to internal displacement, the protections these instruments provide certainly apply to displaced persons, including those displaced by natural disasters. Likewise, when natural disasters strike in the context of ongoing armed conflicts, the requirements of international humanitarian law continue to apply.

At the heart of the Guiding Principles, and of the international human rights and humanitarian law on which they are based, is the concept that States bear the primary responsibility for the protection of persons under their jurisdiction (principle 3). At the same time, and in accordance with international humanitarian law, the Guiding Principles also apply to non-State armed groups, which is important as some persons displaced by the tsunamis are located in areas controlled by such groups. Indeed, the Guiding Principles provide guidance to all actors with a role to play in addressing internal displacement.

Natural disasters present particular challenges for the fulfilment of national responsibility as regards protection from displacement. Earthquakes, floods, tornadoes, tsunamis and other natural disasters are beyond the capacity of any State to prevent. However, States can and should seek to mitigate the human toll of such natural phenomena, including by ensuring effective early warning systems. Indeed, as affirmed in the Hyogo Declaration adopted at the World Conference on Disaster Reduction held in Kobe, Hyogo, Japan, in January 2005, “States have the primary responsibility to protect the people and property on their territory from hazards and ... to give high priority to disaster risk reduction in national policy, consistent with their capacities and the resources available to them”.3

Disaster risk reduction is not just a matter of good governance, but addresses the fundamental rights of populations at risk. Guiding principle 5 states that authorities and international actors are obligated to “respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons”. Thus, for example, as the United Nations Special Rapporteur on the right to housing as a component of the right to an adequate standard of living has pointed out, the right to “habitable” housing implies that adequate provisions must be made in housing codes and then properly enforced to ensure that residences are prepared, to the extent possible, to withstand the effects of earthquake.4 Moreover, national law should empower affected individuals to assert these rights, for example, through mechanisms to claim compensation where public officials have failed to take reasonable measures to protect populations and prevent displacement due to disasters.

Not all displacement from disasters can be prevented, even when every reasonable precaution has been taken. Accordingly, it is also necessary to be prepared to respond to protection issues arising from such displacement. Although much depends on the specific context in which the disaster occurs, typical problems in such situations include the following.

Access to assistance. Internally displaced persons have the right to request and to receive protection and assistance from national authorities, who, in turn, have the primary duty and responsibility to protect and assist populations within their jurisdiction (guiding principles 3 and 25 (1)). In the context of natural disasters, States must in general be willing to respond quickly to provide humanitarian assistance to affected populations and refrain from blocking access to those in need, where they are themselves not in a position to provide adequate assistance to their own populations. Other restrictions on the delivery of aid, such as excessive delays in obtaining the necessary permits to reach affected populations, should also be avoided. Civil society and local NGOs, usually at the forefront of efforts to assist and protect populations at risk, should be considered as partners in national efforts and consulted in the design and implementation of programmes. All possible measures should be taken to ensure that they have safe and unhindered access to the displaced and can undertake their humanitarian work and advocate for the rights of the displaced without risk of punishment or harm.

Non-discrimination. After natural disasters, discrimination may arise in the distribution of humanitarian and reintegration assistance as well as decisions regarding relocation and resettlement. As affirmed in the Guiding Principles, assistance and other interventions in response to natural disasters must be undertaken in accordance with the long-established principle of impartiality, without discrimination on the basis of race, ethnicity, religion or other characteristic (e.g. caste) (principles 4 (1) and 24 (1)). It is necessary to avoid discrimination between persons displaced by different causes, such as in cases where natural disaster strikes areas with existing populations displaced as a result of armed conflict or civil strife and where, for instance, assistance is provided to one group and not to another, or where the different groups are entitled to different standards of assistance. Inequities in aid distribution not only violate the principles of impartiality and non-discrimination; they also risk creating resentment and tensions between communities, which can complicate the rehabilitation and reintegration of IDPs and threaten their security. Instead, opportunities should be seized to counter pre-existing patterns of discrimination by ensuring an inclusive response.

Protection of women and children. Displaced women and children face a range of particular risks, and the Guiding Principles accordingly call for special attention to their needs (principle 4 (2)). They experience heightened vulnerability to sexual and gender-based violence, especially in camps, where increased levels of domestic violence and child abuse are a danger. When food is not delivered directly to women, and when they are excluded from camp management and the design of relief and reintegration plans, women’s vulnerability to sexual exploitation and abuse increases dramatically. Women also have special needs in the areas of health services and reproductive health. Trafficking is an additional risk when people are displaced, families separated, children are orphaned and livelihoods destroyed. Children in particular risk recruitment into the ranks of fighting forces.

Access to education. Returning to school as quickly as possible after a natural disaster is important not only to minimize the disruption to children’s education, to which they are entitled by right (guiding principle 23), but is critical for their psychosocial well-being. School attendance can reduce children’s exposure to risks, including trafficking and military recruitment. Moreover, access to education for non-displaced as well as displaced children will also be constrained where IDPs are sheltered in school buildings. Resettling IDPs to more appropriate temporary accommodations, with adequate support and in close consultation with the displaced, is therefore important for access to education not only for IDPs but also for children from the broader community.

Loss of documentation. The loss of personal documentation commonly occurs in situations of displacement, particularly in cases of natural disaster, and can lead to access to public services, such as education and health care, being denied as well as problems in resolving issues of property restitution or compensation. Obtaining replacement documentation often can be difficult and time-consuming. The Guiding Principles specify the right of IDPs to obtain, without unreasonable requirements, all necessary documentation for the enjoyment and exercise of their legal rights, as well as the right of women to documentation issued in their own names (principle 20). This is the responsibility of the authorities.

Participation of internally displaced persons. In the interest of time-efficient management of assistance efforts, there is a tendency to centralize decision-making. IDPs can thus find themselves shut out of planning about the location and layout of camps and settlements, the manner in which aid is distributed, the type of food and other items supplied, and other matters central to their daily lives. IDPs’ exclusion from the decisions that affect their lives can heighten the sense of helplessness inflicted by a natural disaster, undermine the effectiveness of humanitarian assistance, and even put IDPs’ physical security at risk, in particular that of women. Even where IDP participation is sought, women again often are left out, even though they have specific protection, assistance and reintegration needs that, in the absence of consultation, risk not being addressed. Consultation with the displaced is critical in all phases of displacement, and therefore is a theme that runs throughout the Guiding Principles. Special efforts should be made to ensure the full participation of IDPs in the planning and management of their return or resettlement and reintegration (principle 28 (2)), as well as in the distribution of assistance. Special care must be taken to seek out and include the women.

Durable solutions. After the emergency stage of a disaster is over, displaced persons will usually require assistance to rebuild their lives. National authorities have the primary duty and responsibility to facilitate this by establishing the conditions, as well as providing the means, for IDPs to return voluntarily, in safety and dignity, to their places of origin or to resettle in another part of the country and to facilitate their reintegration (principle 28). In addition to rebuilding homes and other infrastructure, this may include assistance to enable the displaced to re-establish previous livelihoods (e.g. rehabilitating damaged agricultural land, business assets, fishing boats, etc.) or providing the displaced with training and assistance for developing new sources of income. Return home may be hindered for various reasons. Governments may declare certain areas “buffer zones” or “exclusion zones” where reconstruction is forbidden. Such scenarios have implications for IDPs’ freedom of movement and, in some instances, property rights and their ability to make a living (e.g. in the case of fishermen barred from living near shore). International norms call for a balancing of the rights of those affected with the interests of the State in mitigating the damage and ensuring public safety, and for an opportunity for judicial review of the decisions. Where the authorities determine that such exclusion zones legitimately should be enforced, such decisions should be taken in close consultation with the displaced, who should receive compensation for property and land lost as a result as well as assistance in relocating and re-establishing their livelihoods and residence elsewhere (principles 7 and 28). IDPs may also choose not to return to their original homes, particularly if their displacement is protracted and they have begun rebuilding their lives elsewhere. Authorities are sometimes anxious to promote return as a symbol of normalization after the chaos brought on by a disaster. However, they should respect IDPs’ right to choose whether to return to their place of origin or to resettle elsewhere, and in either case are expected to assist them to reintegrate (principle 28).

Property issues. Property issues may pose especially complex problems, particularly where a natural disaster has wiped out landmarks used for demarcation. In some areas, residents may not possess formal titles or other evidence of land ownership in the first place. Where they are used, property records, both individual and those maintained by authorities, may have been destroyed as a result of the disaster. Moreover, rules on registration and inheritance may discriminate against women, who then experience particular difficulty regaining their homes and property, especially when their husbands have been killed. Such issues are inevitably legally complicated. Past experience in other countries confronting similar issues following displacement has shown that the designation or establishment of one or more dedicated administrative or quasi-judicial bodies to handle property claims with a mandate for mediation, adjudication (subject to appeal to courts), and providing flexible types of remedies is the most effective way of handling such large-scale property issues. Addressing the property issues resulting from displacement crises can also be an opportunity to remedy long-standing inequities or inefficiencies in registration and cadastral schemes as well as modify laws and policies to ensure that customary rights and non-traditional forms of proof of ownership are given due regard, as appropriate in the domestic circumstances.

As already noted, international law provides that primary responsibility for protecting and assisting internally displaced populations rests with the Government of the country concerned. In order to enable national Governments to fulfil their responsibilities and to address emerging human rights problems, it is necessary constantly to monitor the human rights situation of those displaced by natural disasters. National human rights institutions (NHRIs) can play an important role in promoting national responsibility and reinforcing protection of the rights of IDPs, in particular by identifying patterns of violations or systemic problems so as to enable Governments and agencies to address them at an early stage. It is encouraging that a number of NHRIs in States most affected by the 26 December tsunamis are engaged in protection activities relating to the disaster, including by drawing attention to the human rights dimension of the crisis, monitoring protection concerns, investigating complaints, examining issues of property restitution and highlighting the need for responses to be in conformity with the Guiding Principles. The Representative also welcomes the fact that the representatives of the national human rights institutions of the affected countries (India, Indonesia, Maldives, Sri Lanka and Thailand) at a meeting in Bangkok in March 2005 agreed to work on developing a common methodology for this role, in coordination with the Asia Pacific Forum of National Human Rights Institutions. These activities could provide a model for human rights monitoring during and after future natural disasters.

During his visit, the Representative noted that while United Nations agencies, international non-governmental organizations, donors and other international actors engaged effectively and successfully in providing humanitarian assistance at unprecedented levels during the emergency relief phase, most of them were not sufficiently aware of the human rights dimension of displacement caused by natural disasters. At the same time, most interlocutors responded positively to the points raised by the Representative and were in favour of incorporating a human rights-based approach in developing and implementing a response to natural disasters, in particular during the reconstruction phase. They recognized that there was an inherent risk of an inadequate response if the human rights dimension were neglected. Although there were also words of caution expressed on the need to strike a balance in the immediate emergency phase between championing human rights and reaching as many people as possible, there was wide agreement that while a human rights focus had been largely absent in the initial phase of the response to the 26 December tsunamis, once the immediate emergency phase was over, it was important to include human rights in the next phases.

The Representative urged the United Nations agencies to better integrate a rights-based approach in the programming and implementation of the projects listed in the Tsunami Flash Appeal and to include specific human rights projects, e.g. as regards the protection of property, the rights of women and children and the protection of minorities and indigenous peoples. He furthermore encouraged the Office of the High Commissioner for Human Rights (OHCHR) to become more involved now that the emergency phase is over, in particular by supporting the national human rights institutions in their monitoring role and advising the relevant actors.

While stressing that national Governments have the primary duty and responsibility to ensure the protection of IDPs, the Representative suggested that the international actors involved in the response could also find useful guidance in the Guiding Principles. In this regard, the Representative recommended that OHCHR and OCHA, in consultation with relevant partners, jointly develop guidelines on human rights for humanitarian and human rights actors in situations of natural disaster, in particular with regard to IDPs, which could provide practical operational guidance to the members of the Inter-Agency Standing Committee on the ground. The response to this suggestion was positive and the preparation of such guidelines is presently under way.

Since assuming his position, the Representative has continued the work begun by his predecessor, within the general programme of human rights mainstreaming, in increasing the focus given by United Nations agencies to the human rights of internally displaced persons in situations of humanitarian crisis. The Representative has collaborated with OCHA-IDD in the elaboration of institutional and practical arrangements, and has participated in the meetings of the Inter-Agency Standing Committee to ensure that this policy forum considers issues falling within the Representative’s mandate. In this context, he has contributed to the Humanitarian Response Review undertaken under the leadership of the Emergency Relief Coordinator at a systemwide level. The Representative has also pursued dialogue at senior levels with OCHA, the Department of Peacekeeping Operations and the Department of Political Affairs, the United Nations Development Programme (UNDP) and the Office of the Special Envoy of the Secretary-General for Tsunami Recovery to sensitize these actors to his mandate and explore areas for future mutual cooperation in the IDP context.

Apart from the guidelines on human rights for humanitarian and human rights actors in situations of natural disasters mentioned in paragraph 60, the Representative is currently examining the possibility of drafting joint guidelines on the electoral participation of IDPs, together with the Department of Political Affairs, and is working on the inclusion of women IDPs’ rights in cooperation with the Special Adviser to the Secretary-General on Gender Issues and the Advancement of Women. He has encouraged NGOs to send IDP-specific input to the treaty bodies in order to ensure mainstreaming of IDP issues within these bodies. Furthermore, he has been asked to provide comments on several reports drafted and evaluations commissioned by the United Nations Secretariat, as well as to UNDP in the reformulation of its IDP policy.

In addition to these contributions on systemic issues within the United Nations system, the Representative has also been alert to mainstreaming the human rights of internally displaced persons into United Nations action on country-specific situations. This mainstreaming includes both advocating, where appropriate, for recognition of a particular situation as one of internal displacement, attracting in turn the application of the Guiding Principles on Internal Displacement, as well as highlighting context-specific issues and needs of the persons affected in the particular situation. On this basis, with respect to the situation in Zimbabwe arising out of “Operation Murambatsvina”, the Representative engaged with the Resident Coordinator and the Secretary-General’s Special Envoy on Human Settlements Issues in Zimbabwe with respect to issues of internal displacement in that country. The Representative also engaged with other components of the United Nations system with relevant roles in the same issues. In undertaking these efforts, the Representative coordinated his action with that being undertaken by other special procedures of the Commission on Human Rights and apprised the Government of Zimbabwe of his views. In reply, the Government conveyed to the Representative its response to the report of the Special Envoy.

The Representative concludes that the new focus on the human rights of internally displaced persons conferred by his mandate enables him effectively to build upon the substantial work undertaken by his predecessor. Specifically, the human rights emphasis brings the entitlements of internally displaced persons under human rights, humanitarian and analogous refugee law explicitly to bear, and the Representative will frame the measures he takes on this basis. The rights framework also provides additional clarity to States, United Nations agencies and civil society addressing issues of internal displacement. The Representative welcomes the cooperation shown by Governments in the missions and working visits he has already undertaken and looks forward to working further with them as they respond to his recommendations. The Representative has also been encouraged by the response from United Nations agencies and considers that there is considerable scope for a more rights-focused approach in this area to be further elaborated in the future. In the Representative’s view, his mandate brings specific added value to the activities and measures already being undertaken by States and other humanitarian actors and contributes to deeper strengthening of the practical and legal protection of all internally displaced persons.

In light of these considerations, and consistent with the Guiding Principles on Internal Displacement, the Representative makes the following recommendations: (a) With respect to Nepal, the Government and insurgent forces are called upon to refrain from actions that would cause further displacement. The Government should, as a matter of urgency, recognize the internal displacement that has already occurred and take prompt measures to protect the affected populations. Specifically, the Government should develop a national policy on internal displacement consistent with the Guiding Principles, and donor States should stand willing to provide the necessary support to enable the prompt implementation of such a policy. The United Nations country team, for its part, should focus its protection strategies on internally displaced persons and orient its future assistance and protection work on the basis of the Guiding Principles; (b) With respect to Croatia, Bosnia and Herzegovina and Serbia and Montenegro, including Kosovo, the respective Governments, and UNMIK in Kosovo, are called upon to intensify their search for long-term durable solutions for persons still displaced by the armed conflicts of the 1990s, with a particular view to accommodating the persons with particular vulnerabilities, such as ethnic minorities or the aged. Donor States should be willing to provide the necessary resources still required to fully and finally resolve the ongoing effects of internal displacement in the region. With respect to the international processes bearing upon issues of long-term status in the region, the international community should ensure that the decisions taken protect against any new displacement; safeguard the rights of the displaced, in particular with regard to return, property and access to pensions; ensure that no IDPs become stateless; and do not hamper the efforts to bring closure to the displacement that has been suffered across the region. Returns of former refugees or rejected asylum-seekers from their countries of refuge should be undertaken cautiously, A/60/338 in particular if they cannot go to their former homes, in order to avoid undue additional burdens on areas still grappling with the problem of internal displacement. Members of threatened communities and particularly vulnerable persons should not be returned to situations where they would risk becoming internally displaced persons without the necessary assistance and protection of their rights; (c) With respect to Turkey, the Government is called upon to finalize, on the basis of the study of internal displacement being conducted by Hacettepe University, its “Integrated Strategy Document on IDPs in Turkey” and give prompt effect to this policy framework; (d) With respect to the States stricken by the tsunamis of 26 December 2004, Governments and other relevant actors are called upon to base their activities in the current reconstruction phase upon the framework set by the Guiding Principles on Internal Displacement. Governments in affected countries should also encourage their respective national human rights institutions to assist in monitoring the efforts undertaken and in providing input into the ongoing development of policy aimed at achieving long-term solutions. The Representative also calls for the United Nations to complete the elaboration of guidelines on human rights and natural disasters and disseminate them so that the practical guidance may be of as much benefit as possible in this and future natural disasters; (e) With respect to the ongoing efforts of the United Nations to craft a more effective institutional response to issues of internal displacement, the different components of the United Nations should promptly agree on and implement mechanisms that will ensure a comprehensive and clear division of responsibilities in the field and a clear line of accountability for systemwide action, particularly in the area of protection of IDPs. United Nations resident coordinators and country teams should in turn be provided with clear advice and appropriate resources necessary for effective implementation of the agreed policies. Notes 1 As of early August 2005, the Representative had received approval from the Government of the Sudan to undertake a mission to that country, which was planned for early autumn 2005. 2 See E/CN.4/2005/84, specifically at paragraphs 42-44 and 73-80. 3 Report of the World Conference on Disaster Reduction (Kobe, Hyogo, Japan, 18-22 January 2003 (A/CONF.206/6), Chap. I, resolution 1, para. 4). 4 Press statement, “Bam tragedy must drive resolve towards development of safe housing standards” (7 January 2004), available at www.ohchr.org.