I. The UN Approach to Internal Displacement

Presentation by Rhodri C. Williams,Consultant to the Brookings-Bern Project on Internal DisplacementIDP Joint Training Program for Commission MembersMersin, TurkeyJune 2006

Introduction:-my background-Brookings-Bern Project on Internal Displacement-Representative to the Secretary General on the Human Rights of IDPs-Guiding Principles on Internal Displacement

I. The UN Approach to Internal Displacement

Historical Overview-Before World War II – Only states have status under international law; individuals only have rights under international law when their states decide to defend them.-After World War II – States agree to protect the individual human rights of people within their territory in multilateral treaties (such as the ICCPR, ICESCR, or the Convention Against Torture) and regional treaties (such as the ECHR). Individuals come to be seen as having standing under international law, and can complain about human rights violations to bodies such as the UN Human Rights Committee (ICCPR) and the European Court on Human Rights (ECHR).-As a result, states are obliged to prevent human rights abuses and to provide effective domestic remedies when they occur.

-Where states fail to protect the human rights of persons in their territory, such persons can seek the temporary or permanent protection of other states by seeking asylum. These issues are regulated by international refugee law.-Under international refugee law, states have obligations to provide protection (asylum) to persons who have been individually persecuted, and not to send anyone back to countries where they might face persecution or torture. A special UN agency, the UNHCR, was set up to deal with international refugee issues.-However, where states fail to protect the rights of persons in their territory, but these persons do not cross an international border, international refugee law does not apply. These persons are often forced to flee their homes and become internally displaced.

Internally displaced persons (IDPs) are people who:1. have been involuntarily displaced (due to human rights abuses, generalized effects of conflict, natural disaster or large development projects); and2. have not crossed an international border, and so remain subject to the protection of their own state, rather than a state of asylum.

The UN has not yet proposed a new international treaty to protect the rights of IDPs. However, from a legal point of view, a new treaty may not be necessary.This is because internal displacement violates many of the existing human rights of IDPs.For instance:-being displaced often violates the right to property, the right to the home, the right to freedom of movement, and the rights to life and physical integrity.-during displacement, IDPs often have difficulties exercising their rights, such as the right to education, the right to political participation, the right to adequate housing, etc.

Because internal displacement usually results from human rights violations and causes further human rights violations;And because states are obligated to prevent and remedy human rights violations:States have the primary duty and responsibility to prevent, mitigate and resolve internal displacementSo, from the UN perspective, states are already responsible for dealing with internal displacement under existing human rights law.

The UN Guiding Principles on Internal Displacement are meant to assist states in understanding what specific minimum standards they should meet in order to avoid causing displacement and respect the rights of IDPs. With regard to states, the Principles cover three main areas:-Preventing displacement-Mitigating displacement -Ending displacementThe Guiding Principles are based on existing international law rules – especially human rights law, but also the law of war, and other provisions – that are broadly accepted by States. The Annotations explains the specific international law rules supporting each one of the principles in the Guiding Principles. (The annotations are also available in translation).

In many States, such as Turkey, the authorities developed laws or policies on internal displacement that take into account the Guiding Principles. This is a very positive trend. However, because the Guiding Principles are very broad, they do not provide very specific guidance to States in how to formulate such laws and policies.As a result, the Representative to the Secretary General on the Human Rights of IDPs, Walter Kälin, is currently working on a project to develop a Handbook for Legislators on Developing Laws and Policies on Internal Displacement. Unlike the Guiding Principles, this Handbook will be based not only on international law, but also on the experiences of States that have tried to resolve internal displacement. For instance, lessons learned from the implementation of Turkey’s policies and laws on internal displacement will be very important.

II. Ending Displacement – Observations on Turkey’s Law No. 5233 in Light of the Experiences of Other Countries Faced with Internal Displacement

Efforts to end displacement are usually based on two concepts:1. Remedies for human rights violations2. Durable solutions for IDPs

1. Remedies for human rights violationsDisplacement is often caused by specific human rights violations. For instance, violations of the rights to property and the home can force IDPs to leave their homes and lands and prevent them from returning. As a result ending displacement is often contingent on providing remedies for such human rights violations, such as restitution of homes and compensation for lost farming income.

2. Durable solutions for IDPs“Durable solutions” refers to conditions that restore full freedom of movement and choice of residence to IDPs, allowing them a free choice between:-return in safety and dignity to their home of origin;-local integration into the community where they are currently displaced; or -resettlement elsewhere in the country or abroad.

The provision of remedies for human rights violations suffered by IDPs is often an important part of creating durable solutions. For instance, where IDP’s have suffered violation of rights to their homes and property, restitution of their homes and compensation for the time they were denied access to their homes is a legal remedy. However, these measures also help IDPs find durable solutions. For instance, IDPs who have their homes and property returned to them can either:1. return to live in them; or2. sell, exchange or rent them in order to have money to live independently elsewhere in the country or abroad.

However, providing legal remedies alone is not automatically the same as providing durable solutions. IDPs often need assistance from States to help them end their displacement. Unlike remedies, States are not always legally required to provide assistance. But States often have a strong interest in doing so in order to put an end to the suffering of their own citizens and move back to normality.Assistance should be provided in a way that respects the free will of IDPs in choosing a durable solution. Specialized assistance should target the particular needs of both IDPs who wish to return to their pre-displacement homes and IDPs who wish to remain where they are displaced or resettle elsewhere in the country.

In Turkey, the application of Law 5233 provides a good example of the difference between legal remedies and assistance to IDPs.Example: Citizen A voluntarily leaves his village in Van Province and moves to Mersin. He keeps the house and land he owns in Van and rents them to Citizen B, who derives her income from farming the land. As a result of terrorism or anti-terror activities, Citizen B is forced to flee. Neither Citizen A nor Citizen B have access to the land in Van for ten years and both file compensation claims.What are they entitled to?

Citizen A is not an IDP because he migrated voluntarily from his home. As a result, he does not need assistance finding a durable solution. However, Citizen A was denied access to his property for ten years and lost ten years of rental income as a result. Following the European Court of Human Rights in the Doğan decision, Citizen A is probably entitled to a legal remedy – compensation under Law 5233 – even though he is not an IDP.Citizen B is an IDP, because she moved involuntarily from her place of residence and did not cross an international border. Therefore, she should be able to seek assistance in finding a durable solution. Citizen B was also denied access to the place where she lived and worked for ten years and lost ten years of farming income as a result. Therefore, she has a strong claim to a legal remedy – compensation under Law 5233 – as well.

What does all this mean for implementation of Law 5233?First, it is important to remember that Law 5233 provides a legal remedy to victims of human rights violations. Although many of these victims are IDPs, not all of them are. Those that are IDPs are also entitled to assistance, such as that provided by the State under policies like the “Return to Village” program.Second, the remedy set out in Law 5233 must be effective. Full and fair implementation of the law will allow victims to move on with their lives and avoid further cases going to the European Court on Human Rights.

How does the European Court of Human Rights judge domestic remedies?First it is important to remember how the Court finds violations, and the difference between interferences with rights and violations of rights.Review of ECHR legal analysis, with example:-Admissibility/exhaustion of domestic remedies-Interference with a right-In accordance with law-Legitimate aim-Proportionality

The existence of domestic remedies for human rights violations, such as Law 5233, can be important in two ways for the Court.First, it can affect the proportionality of an interference with a right. In the Doğan decision, before Law 5233 was passed, the Court found Turkey’s failures to allow the applicants access to their homes to represent an interference with their rights. Because Turkey had not yet passed measures allowing compensation for these interferences, they were found not to be proportional to a legitimate aim, meaning that they were violations.

Second, domestic remedies can affect admissibility of cases. In the Icyer decision, when Law 5233 had been passed but not yet implemented in very many cases, the law was deemed to provide an effective remedy. This meant that applicants would have to try to pursue their rights using Law 5233 before the Court would consider the merits of their claims.

So, what happens now?Now we are in a third stage, where Law 5233 has been implemented in a significant number of cases. BUT:1. All those who have not yet had their compensation claims considered continue to suffer from an ongoing interference with their rights; and 2. All those who either refused to sign agreements under Law 5233 or signed agreements but did not feel that they received fair compensation can also argue that they continue to suffer from an interference with their rights.So, implementing Law 5233 as quickly as possible is important for the first group.

But, for the Court, the second group raises the most serious questions. This group has tried to exhaust the domestic remedies presented by Law 5233, so their complaints may be admissible even after the Icyer decision. Therefore, if the Court decides to hear these claims, they will be looking at whether the remedies provided by Law 5233 make up for the interferences the applicants suffered with their rights. If not, the interferences will be ruled to be violations again.

So, what would the Court look for in evaluating the effectiveness of Law 5233 as a remedy?Based on international experience, there are a number of issues that are likely to be important. These include:1. “in accordance with law”: predictability and consistency of outcomes2. procedural effectiveness3. effectiveness in terms of remedy itself: sufficiency and non-pecuniary damages

1. “In accordance with law”: predictability and consistency of outcomesIn principle, the law should be sufficiently clear that applicants should be able to predict at the time they make their claim what the outcome will be, including:-what they are required to do and what evidence they need to bring in order to support their claim-how much compensation they are likely to receive and on what basis-when they are likely to receive a decision and the order it will be processed in relative to other claims

2. Procedural effectivenessFriendly settlement concept and determination on rights and obligations.-Administrative review versus judicial – fairness, efficiency and mass claims, keeping in mind known information about underlying events.-Evidence, allocation of burdens and presumptions

3. Effectiveness in terms of remedy itself: -Sufficiency -Non-pecuniary damages

Pincova and Pinc v. the Czech Republic (Application no. 36548/97, 5 November 2002)62. It should also be noted that the applicants are in an uncertain, and indeed difficult, social situation. With the reimbursed purchase price they are unable to buy somewhere else to live. ….63. The Court accordingly notes that the “compensation” awarded to the applicants did not take account of their personal and social situation and that they were not awarded any sum for the non-pecuniary damage they sustained as a result of being deprived of their only property. In addition, they have still not obtained reimbursement of the costs reasonably incurred for the upkeep of the house, even though a period of seven and a half years has elapsed since 23 January 1995, the day when the judgment of the Prague Regional Court confirming the transfer of title to the son of the former owners became final.64. The applicants have thus had to bear an individual and excessive burden which has upset the fair balance that should be maintained between the demands of the general interest on the one hand and protection of the right to the peaceful enjoyment of possessions on the other. There has therefore been a violation of Article 1 of Protocol No. 1.

I. The UN Approach to Internal Displacement