Philip C Orchard

Protection of internally displaced persons: soft law as a norm-generating mechanism

Internal displacement is increasingly perceived as an international problem. This has led to suggestions that international norms have begun to govern state behaviour towards their own displaced populations. I argue that this change occurred through the innovative use of soft law, in particular the guiding principles on internal displacement, by a consortia of norm entrepreneurs including NGOs and a UN Office, that of the Representative of the Secretary-General for Internally Displaced Persons. As soft law, these principles lack the usual markers which suggest an emerging norm. Instead, the article argues that alternative methods - including the international recognition of the principles and their adoption in domestic legislation - has triggered a change in state behaviour. This is demonstrated by examining two cases of forcible return of IDPs - the closure of the Kibeho Camp in Rwanda in 1995, before the principles were created, and the closure of the Znamenskoye camp in Ingushetia, Russia in 2002, after their creation. Both situations are similar in that the norm appears to have been rejected - forced repatriation did occur. In the Russian case, however, government statements, along with widespread international condemnation of the closures, suggest rhetorical instantiation of a norm of non forcible return for IDPs. Copyright

Revisiting Humanitarian Safe Areas for Civilian Protection

Are safe areas an effective option to protect civilian populations from mass atrocities when they are targeted by their own state? Safe areas disappeared from the international lexicon following the failures in Bosnia and Rwanda. But they are now receiving a second look as a way of responding to mass atrocities without full-scale military intervention. This article argues that the earlier generation of safe areas failed not due to their size or cost, but rather because of problems inherent with their underlying logic. Safe areas were based either on logics of consent or the presence of a credible military force. Hybrid safe areas (such as in Bosnia) were based on neither of these, but instead relied on the legitimacy inherent in the UN Security Council. Crucially, in cases where civilians were being directly targeted by belligerents, both hybrid and consent-based safe areas collapsed. This has direct ramifications for present discussions around the Protection of Civilians agenda and the Responsibility to Protect doctrine.

Regionalizing Protection: AU and ASEAN Responses to Mass Atrocity Crimes against Internally Displaced Persons

Forcible displacement can constitute a mass atrocity crime. This is something that is considered within the non-binding Guiding Principles on Internal Displacement. Efforts to implement the Guiding Principles at the regional level suggest one path to implement stronger legal protections for internally displaced persons (IDPs), in particular, against mass atrocity crimes. These regional processes, however, can vary in remarkable ways. In the African Union, the Kampala Convention has brought the Guiding Principles and protections against mass atrocity crimes directed at IDPs into regional hard law; it also includes robust implementation and enforcement mechanisms. At this stage, however, these mechanisms remain anticipatory rather than effective; consequently international assistance will be vital to entrench the rights anchored in the Convention. By contrast, ASEAN has introduced no overt protections for IDPs. However, its developing legal human rights framework through the ASEAN Declaration of Human Rights, coupled with the Association’s response to the Rohingya IDP crisis in Myanmar, suggests that a policy-focused change, while incremental, may be happening.

More Heat than Light: The Challenges of Measuring Forced Migration

Counting forced migrants runs into a number of hurdles related to their classification, to their experience of flight, and to the need to use myriad sources of data from governments, international organisations, and non-governmental organisations. To complicate matters, three organisations have mandates to count different groups – the UN Relief Works Agency (UNRWA) for Palestine refugees, the UN High Commission for Refugees (UNHCR) for refugees more generally, and the Internal Displacement Monitoring Centre (IDMC) for internally displaced persons (IDPs). All three face a range of common challenges in carrying out this vital aspect of their respective mandates. These include conceptual challenges, political concerns, competing interests and access. They also face their own political and institutional challenges, leading to individualised approaches and variance across and even within the organisations. In spite of these complexities, there have been significant improvements in the reliability of data and new technologies and registration methods are providing a way forward to a better understanding of forced migrant movements.

The Contested Origins of Internal Displacement

In 1993, the United Nations (UN) recognized that internally displaced persons, people who have fled their homes due to conflict but have not crossed an international boundary, were an international problem. Francis Deng was appointed as the first Representative of the UN Secretary-General on Internally Displaced Persons, and played a key role in creating the soft law Guiding Principles on Internal Displacement, which have now been widely recognized and brought into regional hard law through the African Union’s Kampala Convention. Yet, why were the internally displaced not treated as an international problem earlier? Widespread internal displacement occurred during the Second World War. Further, by 1949, the problem of ‘internal refugees’ from the Indian Partition and the Greek Civil War was being raised within the UN. Internal refugees were not included in the 1951 Refugee Convention, as Eleanor Roosevelt stated in the General Assembly in 1949, because ‘internal refugee situations … were separate problems of a different character, in which no question of protection of the persons concerned was involved’. Using new archival research, this article argues that Roosevelt’s statement – critical in demarking the definition of ‘refugee’ that appeared in the Convention – was actually a frame used deliberately by the US government to forestall a wider encompassing definition and an assistance mandate for the early United Nations High Commissioner for Refugees. This was a crucial shift, as it reified a clear division between refugees and internally displaced persons, a division which was far murkier in practice than Roosevelt’s statement made it appear.

Regime-Induced Displacement and Decision-Making Within the United Nations Security Council: The Cases of Northern Iraq, Kosovo, and Darfur

Regime-Induced Displacement – when governments deliberately use coercive tactics to cause mass displacement – is an increasing phenomenon. It is a problem for the international community because these situations challenge the ability of international and non-governmental organisations to provide the displaced with basic levels of protection and assistance. Yet even while these crises frequently cross the threshold envisioned in the Responsibility to Protect (R2P) doctrine, the Security Council has generally avoided direct interventions, as the ongoing crisis in Darfur demonstrates. This paper argues that this is not new behaviour. Rather, even the two most notable interventions to protect the displaced in these situations – the US-led military deployment in Northern Iraq in 1991 and the NATO-led intervention in Kosovo – were driven by circumstances and politics outside of the Council. This suggests that even as regime-induced displacement is increasing, the likelihood of seeing the Security Council use the R2P doctrine to protect the displaced without reform is negligible.