International Normative Framework & Displacement

8/3/2019 International Normative Framework & Displacement

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International NormativeFramework & Displacement

International Humanitarian Law

Human Rights Law

Refugee Law

Guiding Principles on Internal DisplacementRegional and other instruments


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Session Objectives

Describe the rights of individuals who are

displacedWork with more confidence in referring to thelegal instruments which protect these rights

Identify resources & references for furtherexploration of specialized issues

At the end of this session, you will NOT all be lawyers,but you will be able to:


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What do they have in common?

Human Rights Law

International Humanitarian Law

Refugee Law

Security Council Resolutions


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Human Rights Law

Founded on respect and dignity of the individual

Universal, inherent, inalienable

Key documentsUniversal Declaration of Human Rights (UDHR)

International Covenant on Economic, Social, and Cultural Rights

International Covenant on Civil and Political Rights (ICCPR)

Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW)Convention on the Rights of the Child (CRC)

Convention against Torture, Cruel, Inhuman and Degrading Treatmentor Punishment (CAT)


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Non-derogable rights

Certain rights can be temporarily suspendedor derogated during public emergencies Freedom of movement

Freedom of assembly

Core rights can never be suspended (non-derogable) Right to life Freedom from torture, cruel/inhumane treatment

Freedom from enslavement or servitude

Freedom of thought, conscience, religion


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International Humanitarian Law (IHL)

Applicable in armed conflict.

Protects those who are not or no longer

taking part in hostilities.Means and methods of warfare are limited

Binding on states andorganized armedgroups.

Key Documents

Geneva Conventions of 1949 and Additional Protocols 1977.


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Geneva Conventions and Protocols

Four Conventions Amelioration of Wounded and Sick in Armies

Amelioration of Wounded, Sick and Shipwrecked

Treatment of Prisoners

Protection of Civilians

Additional Protocol I: Protection of Civilians inInternational Armed Conflict (1977)

Additional Protocol II: Protection in Non-International Armed Conflict (1977)


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IHL: Common Article III

Considered a treaty in miniatureIn case of armed conflictnot of an international

characteroccurring on the territory of one of thehigh contracting parties, each party to the conflictshall be bound to apply, at a minimum, the followingprovisions

Protection of those taking no active part in hostilities

Prohibition of violence, murder, hostage-taking,degradation, extra-judicial punishment of civilians orthose hors de combat

Care of prisoners and wounded


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Two branches of International Law:Complementary but applied differently

IHL

Protect human dignity

In war timeProtect against actionby adversary

No derogation

HR

Protect human dignity

At all timesProtect against arbitraryaction by State

Limited derogation in

case of emergency


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IHL and Human Rights Law

HUMAN

RIGHTS

Freedom of Expression

Freedom of Assembly

Right to Marry

Right to Education

COMPLEMENTARYPROVISIONS

Right to Life

Prohibition against Torture

Prohibition against Ill-

treatment

Family unity

Fair Trial

IHL

Protection of

wounded, sick and

shipwrecked

Protection of POWs

and civilian internees

Conduct of Hostilities

Common Goal : Protection of the individual


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Application in Context

Categories of Conflict Peacetime

Civil disturbance, riots,disasters

Public emergency

Non-international armedconflicts (between govt

forces and organized armedgroup or 2+ organized non-

govt groups)

International armed conflictbetween two or more States

Relevant Bodies of Law Human rights law HR law; rarely justifies

derogation

HR law; limited derogation

IHL applicable, no derogation HR also applicable but may

be possible to derogate certainrights

IHL applicable HR law applicable domestically

but possible to derogatecertain rights


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Refugee Law

Specific protection regime for Someone who, as a result ofa well-founded fear of being persecuted for

reasons of race, religion, nationality, membership of a particular socialgroup, or political opinion, isoutside the countryof his nationality and isunable or owing to such fear, is unwilling to avail himself of the protection

of that country.

Right to seek asylum

Principle ofnon-refoulement

Key Documents

Refugee Convention of 1951

OAU Convention of 1969, Cartagena Declaration of 1984


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Guiding Principleson Internal Displacement

Identify rights of IDPs

Consistent with IHL, HR

Restates relevant norms for IDPs

Delineates rights and guarantees asrelate to different phases of

displacement

Not a treaty


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1) Every human being has the right to liberty andsecurity of person. No one shall be subjected toarbitrary arrest or detention

Derived from:

UDHR articles 3 and 9

CCPR article 9 (1)

General

How are the principles derived?

Example, Principle 12


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Principle 121) Every human being has the right to liberty and security of

person. No one shall be subjected to arbitrary arrest ordetention

2) To give effect to this right for internally displaced

persons, they shall not be interned in or confined to acamp. If in exceptional circumstances such internment orconfinement is absolutely necessary, it shall not lastlonger than required by the circumstances.

3) Internally displaced persons shall be protected from

discriminatory arrest and detention as a result of theirdisplacement.

4) In no case shall internally displaced persons be takenhostage.

General

ApplicableTo IDPs

Applicable

To IDPs

Applicableto IDPs


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Guiding Principles

General principles

Non-discrimination

Reference to IHL, HR, and domestic law

Reiterates responsibility of State Affirms right of IDPs to request/receive protection

and assistance

Protection from displacement

Prohibits arbitrary displacement

Minimize adverse effects, assure proper conditions


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Guiding PrinciplesProtection during displacement Physical security

Movement-related rights

Family unit and community

Economic, social, cultural rights

Humanitarian assistance State responsibility

Humanitarian access and transport of suppliesReturn, reintegration, resettlement Voluntary, in safety and dignity

Monitoring and humanitarian access


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Other instrumentsConvention on the Rights of the Child + 2Optional Protocols

ILO Convention 182 on Elimination of Worst Formsof Child Labor

CEDAW: Convention on the Elimination of all formsof Discrimination Against Women

Rome Statute of the International Criminal Court

Pinheiro Principles on Land and Property Rights

National legislation?Regional instruments? African Charter, European Convention, American

Convention, etc.


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Exercise

With the group at your table, identifythe violations contained in the case

study with reference to the GuidingPrinciples.

Prepare a flip chart:

Situation Guiding Principle

1.

2.