Presentation by Rhodri C. Williams,
Consultant to the Brookings-Bern Project
on Internal Displacement
IDP Joint Training Program
for Commission Members
Mersin, Turkey
June 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); and
2. 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 displacement
So, 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 displacement
The 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 violations
2. Durable solutions for IDPs
1. Remedies for human rights violations
Displacement 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; or
2. 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 outcomes
2. procedural effectiveness
3. effectiveness in terms of remedy itself:
sufficiency and non-pecuniary damages
1. “In accordance with law”: predictability and consistency
of outcomes
In 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 effectiveness
Friendly 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.