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close this bookLaw in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)
close this folderInternational Humanitarian Law and the Law of Refugees and Internally Displaced Persons
close this folderIV. The Need for Comprehensive Approaches
View the document(introduction...)
View the document1. Overcoming the Differentiation Between Externally Displaced Persons (Refugees) and Internally Displaced Persons
View the document2. Overcoming the Still Existing Differentiation in International Law as Regards Norms Applicable Before, During and After Situations of Armed Conflicts Resulting in Forced Movements of Persons

(introduction...)

The overall structure of this paper, i.e. to separately address the needs of refugees and internally displaced persons, obviously reflects the traditional approach (and the currently existing lex lata). It is suggested, however, that there is an urgent need for a comprehensive approach, i.e. to simultaneously address the needs of those two categories of persons in need of international protection and assistance. Moreover, it is suggested that it is necessary to overcome the still existing differentiation in international law as regards norms applicable before, during and after situations of armed conflicts resulting in forced movements of persons.

1. Overcoming the Differentiation Between Externally Displaced Persons (Refugees) and Internally Displaced Persons

It is a fact well known to any international lawyer that there is a striking difference as regards the legal situation of refugees and internally displaced persons. If one applies the "broader" refugee definition as enshrined in the 1969 OAU Convention and the 1984 Cartagena Declaration which is, apparently, widely used by UNHCR and other international institutions, it becomes obvious that the only difference between persons who are externally displaced as a result of armed conflicts and persons who are internally displaced as a result of armed conflicts consists of the fact that persons belonging to the former group have crossed an internationally recognized border. However, as regards the root causes of such displacements and the need of the members of both groups of persons for international protection and assistance, it must be stated that there do not exist any significant differences; on the contrary, in many situations internally displaced persons are in more urgent need for such protection and assistance than refugees.

With a view to these facts, the question must be raised as to whether the simple fact of having crossed an internationally recognized border warrants the existence of two different legal regimes, in particular, if one takes into consideration that, as regards internally displaced persons such a regime remains in many aspects in what might be called at the very most a status nascendi. It is suggested that, with a view to the present state of international law which is characterized by an increasing tendency towards closer global or, at least, regional integration, it does not seem appropriate to accord such a fundamental importance to "borders". If it is true that strictly humanitarian concerns and the need of persons for international protection and assistance constitute the underlying rationale for the existence of refugee law, it is hardly comprehensible that international law should exclude internally displaced persons from the legal and factual benefits available to externally displaced persons. Furthermore, it must be borne in mind that many "internationally recognized borders" have been drawn in a most arbitrary manner, and that, in many situations of displacement as a result of armed conflicts, the fact of a person's having crossed such a border rather constitutes a matter of sheer coincidence.

Therefore, it is suggested that the international legal community urgently concerns itself with the issue of bridging the gap between the legal regimes applicable to externally displaced persons (refugees), on the one hand, and internally displaced persons, on the other hand. At first sight, there seem to be two viable solutions: firstly, to amend the internationally accepted "broad" refugee definition in such a way as to also include persons who are internally displaced as a result of armed conflicts and who would thus clearly be entitled to international protection and assistance; this solution could easily be achieved by simply deleting the proviso relating to the crossing of an internationally recognized border. Secondly, to draft an international document on the rights of internally displaced persons and the corresponding obligations of States and the international community which, as to its contents, would provide for basically the same rights as to international protection and assistance as held, under international law, by refugees.

2. Overcoming the Still Existing Differentiation in International Law as Regards Norms Applicable Before, During and After Situations of Armed Conflicts Resulting in Forced Movements of Persons

With regard to refugee law, it may stated that there exists wide-spread consensus as to the necessity of comprehensively approaching the different temporal stages of situations of external displacement. In other words: contemporary international refugee law does not only deal with the imminent protection needs of refugees but also addresses the root causes of refugee movements and the issue of durable solutions to refugee situations.

It is suggested that the same approach ought to be taken as regards the evolving international legal regime of internally displaced persons. This implies, inter alia, that the major root causes of internal displacements, namely gross and systematic violations of international human rights and humanitarian law, are efficiently addressed by the international community; that the already existing and possibly evolving rules of international law as regards the imminent effects of situations of internal displacement, namely to protect internally displaced persons against further violations of their fundamental rights under international human rights and humanitarian law and to ensure that they safely receive the assistance extended to them by the international community, are sufficiently enforced by the international community; and that the currently existing and possibly evolving rules of international law as regards durable solutions to situations of internal displacement, in particular the right of internally displaced persons to return to their homes, i.e. their places of previous habitual residence, are efficiently implemented by the international community.