On December 2 expert of our Association professor Borys Babin make his report on the World Law Congress in Barranquilla, Colombia, in a framework of discussion regarding issues refugees and migration. We publish the thesis of ARC’s expert that caused active discussion and interest to the relevant issues.
The questions of international migration, refugees and asylum seekers are well-recognized and actual issues of modern national and international theory and practice. Those challenges were reflected in the universal and regional conventions and in the broad practice of regional human rights institutions, such as courts and commissions. But the entire problem of person’s displacement is much more global and complicate, so one of its key issues is the internal displaced persons’ (IDPs) rights.
IDPs phenomena is directly connected with human rights, transitional justice and sustainable development, it includes millions of people and states of all continents. I would like to remind that currently there are five million IDPs in Colombia alone, and more than million IDPs in Ukraine; such numbers make undoubtedly crucial influence for the whole national development, same as on the regional order.
However, this problem is still not regulated on the global conventional level, as there is no universal treaty, regarding the international displacement, adopted under aegis of United Nations or any other relevant structure. Only African Union’s members adopted the Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa, in force since 2012 and ratified by 35 states. Kampala Convention includes all IDPs’ categories such as armed conflict’s victims, natural disasters’ and large-scale development projects’ survivors etc.
This act reflects the state’s duties of the approval of special legislation on IDPs; of determination the official body, responsible for IDP issues and for relevant cooperation with international structures; of IDP strategies and programs to be adopted at the national and local levels, taking into account the needs of the host communities; of creation the special funds on IDPs’ needs and of introducing the IDPs’ interests of in peace negotiations and sustainable solutions’ development.
The First ministerial conference of Kampala Convention’s state parties has adopted in 2017 the Harare Plan of Action for its implementation, identifying, inter alia, specific obligations, roles and responsibilities of armed groups, non-state and other relevant actors, including civil society organizations, on the IDP issues. I hope, my colleagues from Africa states may give more fresh information on this treaty’s implementation, as the Convention of its Harare plan both did not establish the mechanisms of IDPs’ individual complaints of even relevant collective submissions.
And more, any case, neither of the cases now pending before the International Court of Justice is connected with the Kampala Conventions’ provisions.
Of course, the absence of such universal treaty may be corrected by the resolution of the United Nations’ Security Council. But it is not too simple to identify the real level of effectiveness of relevant Council’s resolutions. For example, Resolution 2202 (2015), called on parties to implement accords, aimed at peaceful settlement in Eastern Ukraine, and welcomed the cease-fire agreements mentioned in this act, pointed on the IDP issues also.
But this act was just a recommendation, regarding the chosen UN Chapter’s procedure to be adopted; and more, the state, that is a party to the conflict, took part in voting, contrary to the Chapter’s prescripts. More, I may point, that as minimum such procedures are not legally irreproachable, regarding the non-compliance of as minimum two of permanent Council’s member states that are Russia and communistic China with the direct demands of the UN Chapter’s current articles.
Anyway more than ten relevant General Assembly’s resolutions named “Protection of and assistance to IDPs” may be reminded, as adopted since 1994 (48/135, 50/195, 52/130, 54/167, 56/164, 58/177, 60/168, 62/153, 63/286, 64/162, 74/160 etc). They determine reasons of the internal displacement, including violations and abuses of human rights and humanitarian law, armed conflict, persecution, violence and other reasons, including terrorism, as well as natural and human-made disasters.
A resolution adopted in 2019 stressed that conflict-related displacement could be reduced, if humanitarian law was respected by all parties to armed conflict, in particular the fundamental principles of distinction, proportionality and precaution, as well as the prohibition of forced displacement of the civilian population. More, such resolution recognized that internal displacement is not only a humanitarian, but also a development challenge, and in some cases can also be a peace-building challenge.
Of course the set of such resolutions make specific politic and organizational situation for the relevant United Nations’ activities. But some IDP issues need an additional reflection for those UN acts, like special risks for displaced indigenous representatives or like evidently negative role of racial discrimination, anti-Islamism, anti-Semitism and xenophobia, including related enforced displacement, hate crimes and hate speech. Some thematic acts of General Assembly recognized those negative impact factors, like IDP-related UN resolutions on the temporarily occupied Crimea adopted during 2014-2020 (68/262, 71/205, 72/190, 73/263, 74/168, 75/192, 73/194, 74/17, 75/29 etc.), condemning the relevant behavior of the Russia-controlled de-facto “authorities” on peninsula.
However, such UN programmatic or recommendation provisions are not legally binding, same as the Guiding Principles on Internal Displacement, adopted by the UN Commission on Human Rights in 1998, the Plan of Action for Advancing Prevention, Protection and Solutions for IDPs, adopted by Global Protection Cluster, or the recent High-Level Panel on Internal Displacement, established by the UN Secretary General in 2019.
Also, one and a half decade of Human Rights Council’s activities may give the examples of construction the relevant international legal standards for IDP issues. Relevant Councils’ resolutions established and evaluated the mandate and activities of the UN Special Rapporteur on the human rights of IDPs, who become a key practical international mechanism in this area. Rapporteur’s thematic reports became important pillars for the development international standards in areas of IDPs, including IDPs’ housing, land and property issues (47/37), climate change effects (75/207), role of national human rights institutions (41/40) and transitional justice (73/173), enhancing the participation in decisions affecting IDPs (72/202), protection the IDPs with disabilities (44/41) and internally displaced children (74/261).
I must stress the attention on the Rapporteur’s modern report on prevention of arbitrary displacement in situations of armed conflict and generalized violence 76/169, presented at the UN General Assembly’s session in 2021. In this act, the Rapporteur recognized that the number of IDPs, caused of armed conflict and violence, reached 48 million globally, and she evaluated also the Law of Colombia, 1997 on IDPs in this report.
The core idea of this UN report is to determine when the arbitrary displacement is illegal or criminal, and when it is not, and how to prevent such displacement. But this Rapporteur’s act, reminding, for example, on gender-based violence, as potential displacement driver, did not mention the issues of racial, cultural and linguistic discrimination, including the repressions against indigenous peoples in the framework of conflicts and connected displacement. Also, this report did not even mention the above-mentioned obligations and responsibilities of armed groups, non-state and other relevant actors. This concept is not formal, as the global practice points on crucial negative role of such activities, and the experience of Ukraine and Columbia must be recalled.
For example the internal displacement of thirty thousands Ukrainian citizens, mostly the Crimean Tatar indigenous people representatives from the Crimea since 2014, was caused just by the Russian-controlled paramilitary structures, like private military companies and local conflicts’ “veterans’ unions”.
But anyway this UN report, 2021 seems to be important for us, as it determines clearly that IDPs must have access to justice and effective remedies, including judicial review of the decision to displace them, and reparations; any barriers that prevent displaced persons from accessing the judicial system should be removed and legal aid should, to the extent possible, be provided.
As the activities of the UN Special Rapporteur, including her cooperation with academicians, human defenders and country visits, are limited in last years the lawyers may cooperate with Human Rights Council via other thematic UN human rights experts among 45 of them present in 2021. Their work is not a research and report proposals only but also collecting the submissions from the civil society structures, academicians and even individuals; it makes possible to apply on wide set of challenges regarding the IDPs. The Association of Reintegration of Crimea, which I do represent, sent more than twenty submissions in the framework of such procedures of the Human Rights Council in latest two years, regarding the IDPs protection in area of ongoing interstate conflict around Crimean peninsula.
In these submissions, the Association attracted the attention of the UN officials to the grounds of internal displacement, created by the paramilitary structures, like Russian-controlled private military companies and local conflicts’ “veterans’ unions”. The issues of militarization, of violation the fundamental civil and politic rights, of limiting the access to justice, education, medicine, clean environment and governance were mentioned also in those submissions.
Those IDP-related submissions were forwarded by our Association in 2020-2021 to such UN special rapporteurs, as: on the rights of migrants, on contemporary forms of racism, on the indigenous peoples, on minority issues, on combating children’s exploitation, on combating tortures, on the right to development, on contemporary forms of slavery on the right to health, on violence against women, on freedom of belief, on the freedom of opinion, on the human rights defenders, on the right to food, on human rights and environment, on the right to adequate housing, on older persons and others.
Those UN experts send the relevant reports to the General Assembly and Human Rights Council and they published our Association’s statements officially, with special thanks on contributions, thus enabling provision of examples that may be adapted and used in particular national circumstances, including displacement issues.
Coming back to international justice, it is hard to confirm that it reflected the standards of IDPs’ protection in latest decades on the universal level. However, the International Court of Justice may implement the concept of IDPs’ protection in other pending cases, such as Ukraine v. Russian Federation, 2016 related with violations the International Convention on the Elimination of All Forms of Racial Discrimination. Such implementation may be performed in the framework of grounds of internal displacement from the Crimea, caused by the racial discrimination, anti-Islamism, anti-Semitism and xenophobia in that region, non-controlled by the Ukraine’s government.
Of course, the IDPs issues are much more reflected in the regional human rights courts’ practice. The European Court on Human Rights researched in number of cases the violations of IDPs’ rights on election, on property, on life, on justice, on privacy and on freedom, including decisions Timishev v. Russia, Catan and Others v. Moldova and Russia, Sargsyan v. Azerbaijan, Selygenenko and others v. Ukraine, etc.
Experts of our Association passed some confidential individual applications of IDPs from Crimea to the European Court in recent years. And more, the conflict-related displacement is reflected in the interstates cases are pending before the European Court, such as Ukraine v. Russia, 2014. European Court established in the relevant case judgment, 2021 already the elements of Russia’s administrative practice for restricting freedom of movement between the Crimea and mainland Ukraine, for discriminating Crimean Tatars and for other violations, connected with enforced displacement from the Crimea.
Of course the decisions of the African Commission on Human and Peoples’ Rights regarding the IDPs rights’ protection may be pointed, such as case Abdel Hadi, Ali Radi and others v. Sudan and Endorois v. Kenya. Relevant approach in those issues was done by the Inter-American Court on Human Rights, including cases Loayza Tamayo v. Peru, Ituango Masacres v. Colombia, Río Negro Massacres v. Guatemala and Chitay Nech and others v. Guatemala.
The Inter-American Court stressed in relevant decision Ituango Masacres that numerous cases of links between paramilitary groups and members of official bodies make state responsible for the internal displacement caused by massacres, committed by such paramilitary groups. Court stressed that the state must provide the necessary and sufficient resources to ensure that the victims of forced displacement may resettle in similar conditions to those they had before these events, in a place they freely and voluntarily choose.
I am sure that such Inter-American Court’s thesis are extremely important for cases pending in ICJ and European Court, especially in framework of the ongoing internal displacement from Crimea, caused by the too similar activities by the paramilitary units, like Russia-controlled “Crimean Self-Defense”, “Afghan Veterans’ Squads” etc.
And, finalizing I want to stress the issue of the indigenous IDPs’ rights and issues. Support of the UN Declaration on the Rights of Indigenous Peoples by Colombia in 2009 and by Ukraine in 2014, as by two states with internal displacement challenges, are too common in their practical grounds. In Ukraine, the practice of defending the indigenous IDPs was complicated last years, as the legislation implementing the Declaration’s demands was not developed.
But in 2021 the national law of Ukraine on indigenous peoples was adopted and our Association actively participates, alongside with governing bodies and academicians, in the development of a sublegal act on legalization the indigenous’ representative bodies and on consultations’ procedures with them, including the IDPs’ issues.
So I hope to report in future on results of such amendments’ practical realization in the framework of the defense the IDPs’ rights all around the globe.