TRAPPED BY SOVEREIGNTY

Abstract

This article examines the legal contours of the international law regime as it relates to internally displaced people (IDPs) and assesses it critically. It analyzes the structural legal and humanitarian injustices from which IDPs suffer as a result of often arbitrary distinctions between them and refugees in international refugee law, international human rights law, and international humanitarian law. It explores how IDPs do not have the same explicit, dedicated legal protections in international law as refugees who have fled their countries of origin and crossed an international border. It argues that precisely because IDPs lack international legal protections, their rights and needs are often overlooked and met with indifference and lack of sufficient humanitarian response from the United Nations, its agencies and member states, and global humanitarian NGOs. It discusses efforts to recognize a specific set of international legal rights for IDPs, why they have been stymied for several decades, and the practical consequences in terms of human rights deferred and denied and human welfare undermined for IDPs and their increasing vulnerability and disadvantage. Finally, it presents ways of improving respect for and fulfillment of the human rights of IDPs.

This study examines how international refugee law, and international human rights law that complements it, paradoxically and problematically reinforce the legal, moral, and policy significance of sovereign borders at the expense of human rights protection. In insisting that the right to international protection can only be triggered by crossing an international border, they embolden the significance of borders and systematically exclude internally displaced people (IDPs) who may be experiencing similar kinds of persecution as refugees, despite being unable to cross an international border.

I argue that the morally arbitrary distinction of the ability to cross a sovereign border in order to gain protection through asylum or refugee status discriminates against IDPs trapped by the sovereignty of their own oppressive state. The study analyzes the legal contours of the international law regime as it relates to IDPs and assesses it critically. It also examines the structural legal and humanitarian injustices from which IDPs suffer as a result of these arbitrary distinctions between them and refugees in international refugee law. I contend that, precisely because IDPs lack international legal protections, their rights and needs are often overlooked and met with indifference and lack of sufficient humanitarian response from the United Nations, its agencies and member states, and global humanitarian NGOs. Efforts to recognize a specific set of international legal rights for IDPs, why they have been stymied for several decades, and the practical consequences in terms of human rights deferred and denied and human welfare undermined for IDPs and their increasing vulnerability and disadvantage are also discussed. Finally, the article presents ways of improving respect for, and fulfillment of, the human rights of IDPs.

The United Nations Guiding Principles ¹ on Internal Displacement define an IDP as follows:

Internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border. (McNamara 1998)

Of greatest consequence to the welfare (or lack thereof, more accurately) of IDPs is this final clause, which disadvantages them dramatically vis-à-vis international refugee law. The Guiding Principles describe the ways in which the human rights and welfare of IDPs are threatened and routinely violated.

Often the consequence of traumatic experiences with violent conflicts, gross violations of human rights and related causes in which discrimination features significantly, displacement nearly always generates conditions of severe hardship and suffering for the affected populations. It breaks up families, cuts social and cultural ties, terminates dependable employment relationships, disrupts educational opportunities, ² denies access to such vital necessities as food, shelter and medicine, and exposes innocent persons to such acts of violence as attacks on camps, disappearances and rape. ³ Whether they cluster in camps, escape into the countryside to hide from potential sources of persecution and violence or submerge into the community of the equally poor and dispossessed, the internally displaced are among the most vulnerable populations, desperately in need of protection and assistance. (Deng 2007)

Despite this vulnerability, however, IDPs face lack of access to protection because international refugee law orients itself around the protection of individuals escaping persecution who cross an international border, excluding those individuals who are unable to make such a border crossing. The human rights violations that IDPs typically experience are multiple and mutually reinforcing. These violations cascade and create a negative momentum of both intensity and extension of human rights violations across many domains of the lives of IDPs; from violating their health ⁴ and housing rights to their rights to personal safety, access to legal justice, freedom of movement, education, and their right to employment and income to ensure personal welfare and prevent poverty.

IDPs (see Anderson and Galatsidas 2015; Sengupta 2016a) have no formal legal protections that follow specifically from their being “domestic refugees” (see Doctors without Borders n.d.). The United Nations Guiding Principles on Internal Displacement (2004) apply to them, but these principles in and of themselves are not legally binding and they are not legal protections per se—except when they restate legal binding international human rights law, which are discussed shortly (see also Forced Migration Review 2008). They do not have the force of law. Rather, they are a statement of advisory “soft law”—which express the values toward which the United Nations encourages its member states, agencies, and non-state actors (such as NGOs and corporations) to aspire in their policies and practices.

As the introduction to the Guiding Principles explains,

The Guiding Principles are… intended to be a persuasive statement that should provide not only practical guidance, but also an instrument for public policy education and consciousness-raising. By the same token, they have the potential to perform a preventive function in the urgently needed response to the global crisis of internal displacement. (The UN Guiding Principles on Internal Displacement 2004)

However, many of these Guiding Principles reflect general human rights laws which are legally binding and apply to IDPs simply because they are universal human rights, but not in relation to the condition of internal displacement. Indeed, the UN Guiding Principles document itself, right after providing the definition of an IDP, affirms, “these Principles reflect and are consistent with international human rights law and international humanitarian law” (UN Guiding Principles on Internal Displacement 2004). These include core international covenants on civil and political rights, economic, social, and cultural rights, the prohibitions on genocide, torture, and disappearance, and the conventions on the rights of children, women, the disabled, and the convention against racial discrimination. They all apply equally to refugees, IDPs, and all persons.

Under international humanitarian law (IHL) IDPs do have explicitly recognized rights pertaining to their condition of displacement, but these only apply in situations of international and national armed conflict. They do not apply when individuals have been displaced because of natural disaster, ⁵ political and social conflicts that are not overtly violent, and massive infrastructure developments such as the construction of dams (Terminski 2015; Dube 2016) and/or famines that result from, typically, a combination of corrupt, undemocratic, and incompetent governance and in many cases, drought as an exacerbating factor. ⁶ All of these may prompt internal displacement. Further, the protections provided to civilians in cases of international armed conflict are more comprehensive than those of non-international armed conflict, revealing again the morally arbitrary pattern in international law of making greater protections for civilians in the contexts of violations of national sovereignty than when human rights violations take place absent such a violation of sovereignty.

IDPs and the Sovereignty Trap

IDPs are victims of a sovereignty trap (Ruddick 1997) which severely restricts their ability to seek out and realize their human rights. Unlike IDPs, refugees benefit from the United Nations 1951 Refugee Convention with its explicit focus on the legal definitions and rights of refugees and the legal responsibilities of nation-states to recognize their rights, and protect and fulfill them. This protection is not afforded to IDPs. While the 1951 Refugee Convention and its 1967 Protocol—which expands its legal remit beyond the borders of Europe to which the original 1951 Refugee Convention refers—also suffers from routine and widespread violations, it has a mixed but (for extended periods of time) decent record of enforcement by many countries who have ratified it and who have often chosen to respect it. It has been a major guarantor of the rights, welfare, safety, and freedom of tens of millions of refugees since 1951.

In recent years, however, and particularly beginning in 2015 and at present, it has been tested greatly by states in Europe, Australia, the United States, and countries in other regions of the world. There is currently major resistance to implementing it fully and in accordance with the letter of the law, let alone its spirit, and respect for the Convention is less robust today than in the past, globally (Manby 2017; Amnesty International 2016/2017). ⁷ The current EU response to the large numbers of refugees and migrants entering Europe and the deal negotiated with Turkey in 2016 for Turkey to take in many of these refugees and prevent them from crossing into the EU (and to resettle in Turkey many asylum seekers who have entered EU nations) has been questioned by human rights NGOs for its potential violations of the 1951 Refugee Convention. Australia's current policies regarding refugees also may run afoul of the 1951 Refugee Convention but have bipartisan support in Australia and remain in place despite severe criticism and condemnation by the UN and its agencies and international human rights and humanitarian NGOs (Rankin 2020a, 2020b; Doherty 2018). Still, in countries in which the rule of law is respected, the Refugee Convention has a strong influence on national policies and often constrains efforts to deny refugees their fundamental human rights.

But the situation for IDPs is altogether different (Rosenberg 2018). The lack of explicit, focused, and widely ratified explicit legal protection for IDPs and recognition of their particular human rights disadvantages and vulnerability to human rights violations has a major detrimental impact on their status, leading them to a unique lack of human rights protection and human rights recourse. This stems from the fact that IDPs are dependent on the states in which they reside to protect them, and because international law and international human rights law places the responsibility of human rights protection on states but offers no substantive legal recourses to citizens and residents of states routinely violating their human rights, IDPs in effect are abandoned by international law and international human rights law to the whims of their abuser nation-states. Only in the most severe and exceptional circumstances, such as a genocide and crimes against humanity—and even only when there is political will which is exceedingly rare—do IDPs potentially have human rights recourse. Moreover, we know from the cases of Rwanda during the 1994 genocide against the Tutsi, Sudan and its genocide in Darfur, and Syria in the context of the crimes against humanity of extermination pursued by the Assad dictatorship during its ongoing civil war, that IDPs have had virtually no protection and are, in effect, sacrificed on the altar of sovereignty. Precisely because IDPs lack international legal protections, their rights and needs are often overlooked and met with indifference, apathy, and lack of sufficient humanitarian response from member states of the United Nations and from the United Nations and its agencies.

Efforts to recognize a specific set of international legal rights for IDPs have been stymied for several decades for a number of reasons. These include: a lack of interest on the part of nation-states in creating new legally binding international human rights laws; fears of sovereign states that granting IDPs explicit rights would exert undue pressure on them by the UN and foreign countries to intervene in their domestic affairs; concern that granting IDPs explicit rights would undermine the rights of refugees; and concern that, by providing IDPs with formal international human rights protections, nation-states that currently offer asylum to refugees would become increasingly resistant to doing so, arguing that refugees should remain in their countries of origin where they have recognized rights as IDPs. As Jeff Crisp (2017) (see also Dubernet 2001; Human Rights Watch 2001), Associate Fellow at Chatham House writes,

While the international community's recent efforts to address the refugee issue are to be welcomed, those initiatives must not become an excuse for a failure to act on behalf of the internally displaced and those who are trapped in conflict zones. Their protection needs are often greater and must consequently be given a much higher priority than is currently the case.

Refugees are legally and practically advantaged in international human rights law not by virtue of necessarily having intrinsically greater vulnerability and disadvantage than IDPs and greater experience, necessarily, of human rights violations, but simply because they have crossed an international border. That act has an enormous potentially positive impact on their life chances, the increased likelihood that they will receive the attention and care of humanitarian agencies with positive resulting health and welfare consequences, and the possibility of their rebuilding lives for themselves in safe, stable, and well-resourced democratic countries which is not an option for IDPs. As Bhaba (2016) writes about the experience of Syrian IDPs in comparison to that of Syrian refugees,

Protection and aid have been disproportionately allocated to those who manage to leave the region, rather than those trapped within it—a perverse incentive to migration if ever there was one. The migrants, for all their desperation and exposure to tragic hardship, are, perhaps surprisingly, a relatively privileged minority of at-risk Syrians: those with the physical ability, the financial means, the familial support, and, critically, the determination necessary to seek protection outside the region. It is well known in migration circles that those who flee abroad are typically not the most destitute or endangered.

Still, one must take care not to exaggerate the benefits of crossing an international border to refugees. Tens of millions of refugees have crossed an international border and languish in impoverished countries with weak and often non-existent human rights protections, non-democratic and unaccountable governments, and widespread human rights violations and impunity for human rights violators as well as little access to quality humanitarian services (Bhaba 2016). ⁸ So while, in the main, refugees potentially have greater access to human rights protection and fulfillment than IDPs, many ultimately find themselves vulnerable and disadvantaged as well. It is generally the refugees (a small minority of the global total) who succeed at crossing into wealthy liberal Western democracies that are most advantaged, although they too face both systemic and interpersonal discrimination in receiving countries on account of their refugee status. So too—though to a lesser extent—are those refugees who enter countries that may lack financial and human resources to provide fully for their needs, such as Jordan and Turkey, but where humanitarian aid organizations and UN agencies have extensive programs of aid and relief and where there is a degree of physical security and some willingness on the part of host nations to provide services to refugees, however limited and selective.

The sovereignty trap is at least in part a reflection of the fundamental political origins and orientation of international law and is inherent to its structure and functioning. Born out of the agreements of nation-states, the UN Charter and the international laws and international human rights laws that the UN promulgates are grounded in the primary principle of respect for the sovereignty of nation-states and for their self-determination. ⁹ Indeed the core international human rights treaties that comprehensively protect the human rights of individuals—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights—ground these protections in the political and legal authority of the nation-state whose primary responsibility is to respect, protect, and fulfill human rights. As such, there is a clear logic from which the IDP sovereignty trap stems from and it is the very logic of international law and international human rights law themselves. Because international law and international human rights law privilege the state, IDPs—when suffering from human rights violations as a result of state actions—have very limited human rights recourse. The conflict at the heart of international law between its respect for, and commitment to, states and their power, sovereignty, and legitimacy and its respect for human rights is a constant tension for which—at present—there is no resolution. Overwhelmingly, power resides with states and not with their individual citizens and their human rights.

Consequences of the Sovereignty Trap: Disadvantage, Insecurity, and Lack of Humanitarian Aid Access of IDPs

IDPs are doubly disadvantaged because, in addition to lacking international legal protection specifically addressing their rights, they also lack the benefit of a UN agency whose directive and resources are dedicated to fulfilling their rights and needs. Concern about the inequality of both legal and practical provisions for IDPs relative to refugees and the resulting deprivations and violations of their human rights has been expressed by politicians, policy makers, and academics for several decades. As Human Rights Watch (2001) notes, the U.S. diplomat Richard Holbrooke was particularly vociferous in criticizing these inequalities and had suggested that one UN agency have responsibility for IDPs, such that their rights and needs would not continue to be marginalized. But his suggestion was widely rejected (Human Rights Watch 2001). The rejection was for some of the reasons discussed earlier, such as concerns that liberal democracies able to accept refugees would choose to accept few if greater attention was paid to protecting and realizing the rights of IDPs. The rejection was also because of conflicts between different UN agencies whose programming priorities vary and some of whom felt threatened by the notion that one agency should be tasked with provisions for IDPs (Human Rights Watch 2001).

Although the UN has a special body dedicated to the rights and needs of refugees, the United Nations High Commissioner for Refugees (UNHCR) has no such agency dedicated to protecting and fulfilling the rights and needs of IDPs (McNamara 2005). ¹⁰ The UNHCR has increased its programs in the area of outreach to IDPs since the mid-late 1990s and continues to do so, but it is not dedicated to IDPs and it lacks the resources to provide for them adequately despite incorporating some programs for them within its remit. More recently, there has also been some improvement of services for IDPs by the UNHCR because of the UN's cluster approach ¹¹ to humanitarian action that—while not without flaws—has helped to strengthen coordination and quality and relevance of provision of humanitarian services by UN agencies and NGOs.

In 2005, Dennis McNamara, former director of the UN's internal displacement division, addressed why IDPs are so often overlooked and marginalized for reasons that go beyond the structural injustices they face within the UN system and international law.

The internally displaced have no voice, they attract few television crews, they are easy to ignore. They are the poorest of the poor, the most vulnerable and the least likely to look after themselves. They are people with no land, no homes, no livelihood, and no papers. (McNamara 2005)

IDPs generally receive less attention than refugees who have left the country in which they experience persecution, in large part because the primary legal responsibility for their well being rests with the country of their residence and/or citizenship, not other nations or the UN and its specialized agencies. This is particularly the case if the country in which IDPs reside and where they have been internally displaced does not welcome and enable such programs—which is a frequent occurrence. Often it is antagonistic to IDPs and their rights and welfare because of the ethnic group to which they belong, their perceived or real political preferences, their religion, or some other characteristic that threatens the power and preferences of ruling authorities who are often willfully violating the rights of their citizens and deliberately creating the unbearable conditions that force migration and generate IDPs (Balmanno 1995).

Typically, and most consequentially, countries with large numbers of IDPs from non-natural causes suffer from war and other violent conflict and/or symptoms of a failed or grossly under-resourced and dysfunctional state where governance is weak, oppressive, and characterized by extensive and intensive violations of international human rights law and IHL. IDPs are often “out of sight and out of mind” precisely because they typically are trapped within the borders of their own countries, unable to pursue asylum and claim refugee status because of the nature of the conflict and/or other domestic disturbances around them.

Another, less well-known cause of displacement, is gang warfare and organized crime that can so terrorize civilian populations and make many areas of a country unlivable that large populations become internally displaced as they seek safety away from areas where gangs are prevalent. Cantor and Plewa (2017) illustrate how in countries with extensive crime carried out by gangs like El Salvador, Honduras, and Guatemala—countries that are not formally at war—rates of internal displacement are as high as in countries at war, with harmful impacts on civilians seeking security and peace within their own country's borders and struggling to find it.

One of the largest scale cases of internal displacement which is reported to have caused massive morbidity and mortality is that of the Democratic Republic of Congo. A major study by the International Rescue Committee reported that more than 5 million deaths ¹² (International Rescue Committee 2007; Zaracostas 2009) (millions of whom were IDPs) resulted from ongoing conflict within the country which prompted internal displacement on a vast scale. This illustrates the ways in which war and other mass violent conflict precipitates internal displacement which in turn increases vulnerability to poverty, illness, precarious and insufficient housing and basic sanitation, and lack of access to essential health and social services (International Rescue Committee 2007; Zaracostas 2009). Other current and recent examples of mass internal displacement have occurred in Syria, Sri Lanka, Sudan, ¹³ South Sudan, Colombia, Yemen (International Displacement Monitoring Centre 2021), and the Central African Republic (Tran 2013a, 2013b). Many of these are active, ongoing crises (Syria, South Sudan, Sudan, Yemen) (Reuters 2015) while others (Sri Lanka, Colombia, Central African Republic) are characterized by a reduction in violent conflict currently, but little redress for IDPs who remain displaced and disadvantaged and unable to realize their rights.

In the current era, IDPs do receive a degree of rhetorical attention that—while substantially less than that received by refugees—is probably greater than at any point in recent history. But the words have little practical policy consequence. The sobering words of Jan Egeland, the Norwegian Refugee Council's Secretary General merit recalling. He has said that the international community's response to the plight of IDPs has been “completely failed” ¹⁴ to “protect civilians in conflict zones” (Jones 2016). This is because without providing soldiers, whether UN soldiers or those of UN member states to prevent violent attacks on civilians and protect them, IDPs are overwhelmingly subject to chronic and mass violence and human rights violations. Humanitarian aid—even when it is consistent, comprehensive, and sufficient, which it almost never is (Ford 2015)—cannot provide protection for IDPs and still leaves them subject to mass human rights violations and mass deprivation and in contexts of violence it cannot reach them or cannot reach them sufficiently and reliably.

IDPs in Syria have been described by Amnesty International (2013, my emphasis) as, “Refugees in all but name, millions of women, children, and men displaced within Syria receive little or no international aid. Most have been displaced several times—each time hoping to find safety only to come under attack again and again.” Amnesty International (2013) further addresses the vulnerability and disadvantage Syrian IDPs now face and have been facing since the Syrian civil war began and particularly as it intensified:

Many of Syria's IDPs initially sought shelter with relatives or friends, but have since tried to flee the country altogether, heading for neighboring countries…There is little food, medical and sanitation facilities are virtually non-existent, and shelters are overcrowded and do not provide protection against the elements… Given this backdrop, Amnesty International urges neighboring countries and the international community to do more to help the millions of Syrian refugees and IDPs.

But these entreaties, of IDPs themselves and of human rights and humanitarian organizations, have largely fallen on deaf ears. Under international law, as noted earlier, there is little impetus for other nations to intervene to assist IDPs except in the most extreme and exceptional of circumstances such as when facing crimes against humanity—for example, wide-scale extermination, in accordance with the principle of the Responsibility to Protect (R2P). However, R2P is more a rhetorical construct and a lofty principle than a legally enforceable law (Hehir 2010, 2012).

The fulfillment of R2P depends entirely on the political will of UN member states and their economic and geopolitical interests as it entails exceptional allowance to violate one of the most fundamental and zealously guarded principles of international law and international human rights law: the sovereignty of a state within its borders. Consequently, it is very rarely respected and acted upon. Even when it is acted upon. such action is often contested, as was the case with the British, French, and American military intervention in Libya to depose the Gaddafi regime in 2011. A civil war—with all its attendant mass violence and gross human rights violations, even if entailing crimes against humanity and war crimes—is very unlikely to attract external support for IDPs. Even when it does, as in Syria currently where some humanitarian assistance reaches Syrian civilians, the response is generally weak, under-resourced, and of minimal impact on massive numbers of IDPs who remain without their human rights being protected and realized.

The lack of sufficient intervention in Syria to prevent the mass killing of hundreds of thousands of Syrian civilians by the Assad regime, the Russian government's bombing campaign and support for the Assad regime and refusal to sanction it at the UN for its use of chemical weapons and other severe human rights violations, and the mass murder of civilians by diverse militia groups including ISIS illustrate how even in the most extreme cases of mass slaughter, R2P is rarely invoked. And if it is invoked it is invoked rhetorically, not in policies that actually respect and protect lives, stop violence and killing, and fulfill human rights obligations. ¹⁵

In the context of Syria, the United States, the European Union and its member states, and other countries with the economic and military resources to intervene to stop war crimes and crimes against humanity against civilians have refused to do so. This has given both the Syrian government and militia groups in Syria (whatever their political and religious orientation) a green light to violate the rights of IDPs with impunity, and to create mass conditions of violence, torture, murder, poverty, homelessness, and existential precariousness which has generated Syria's massive and growing IDP population (Hassan 2018; McKernan 2019a, 2019b; Hagedorn and Akoush 2019; Rawnsley 2018).

Beyond a lack of intervention to ensure the physical safety of IDPs their lack of access to humanitarian assistance further magnifies their vulnerability and disadvantage. A Human Rights Watch (2001) report illustrates the severe disadvantages of IDPs and how they are deprived of humanitarian assistance. Its commentary is as relevant today as it was 20 years ago, and the current situation of IDPs discussed later in this article shares much in common with these historical cases. It outlines three primary reasons for lack of humanitarian access which it explains is responsible for high infant and maternal morbidity and mortality as well as poor health outcomes and egregious human rights violations overall among IDPs.

First, in places such as Chechnya, the Democratic Republic of Congo (DRC), Burundi, Congo Brazzaville, Sri Lanka, Indonesia's Moluccan islands, and Angola, the extremely dangerous security conditions, lack of security guarantees, landmines, and inaccessibility of camps prevented humanitarian workers from having access to thousands of internally displaced persons. In the DRC, for example, the U.N. estimated that only one million of the 1.6 million IDPs had access to any humanitarian assistance due to the precarious security conditions in South Kivu. As a result, infant mortality rates amongst the displaced were the highest in the region and the maternal mortality rate was the highest in the world;

Second, were deliberate obstructions to the delivery of humanitarian assistance by government authorities or rebel forces, as in Burundi, Congo Brazzaville, the DRC, Sri Lanka, Aceh, Indonesia's Moluccan islands, and Chechnya. In Aceh, for example, Indonesian authorities in some cases tried to obstruct local NGOs and student groups in their efforts to assist IDPs through physical attacks, detention, torture, and harsh treatment of volunteers, destruction of volunteer posts, and seizure of medical supplies. In Burundi, soldiers occasionally blocked international agencies trying to bring assistance to the camps, and even when access was resumed many of the camps were inaccessible to relief agencies;

Third, humanitarian assistance was limited by inadequate international response and lack of coordination. In Angola, for example, a U.N. interagency mission in March 2000 concluded that there were serious gaps in the planning, delivery, and monitoring of humanitarian assistance. (Human Rights Watch 2001)

More recently, these patterns of inadequate humanitarian assistance and failure to reach those IDPs in need of it are taking place in Syria, South Sudan, Colombia, and Iraq, among other countries (see Human Rights Watch 2013, 2014, 2015a, 2016a). They repeated themselves in Sri Lanka and have both happened again and continue to happen currently in Burundi and the Democratic Republic of Congo since this report was released. The fundamental disadvantages, deprivations, and vulnerabilities of IDPs remain the same: ongoing exposure to extreme violence with inadequate and uncoordinated efforts by national governments and the UN to provide protection, lack of access to humanitarian aid, and resulting increased morbidity and mortality. More recent Human Rights Watch (2015b, 2016b, 2017, 2018, 2019) annual reports (and Human Rights Watch News Alerts 2019) echo and expand upon these concerns in Burma, Iraq, Syria, Libya, and Ethiopia.

Many development NGOs do not specifically tailor their programs to address the particular needs, vulnerabilities, and deprivations of IDPs. Consequently, while IDPs may benefit from some development aid, there is often a large gap between their needs and development programming. Development programming is also constrained by the priorities of sovereign states and their governments; and these governments are often primary violators of the rights of IDPs. Consequently, when they allow development agencies to operate in their countries, they are unlikely to encourage and enable them to address the rights and needs of IDPs. Indeed, the governments themselves often deliberately implement policies that violate these rights and do not have an interest in advancing the rights and welfare of IDPs, reflecting a key feature of the sovereignty trap. The South Sudanese government, for example, makes it extraordinarily difficult for development and humanitarian aid to reach IDPs (Fakih 2016; Shimanyula and Meier 2016; see also Luopajarvi 2003). The Sudanese government, like the South Sudanese government, exhibits similar policies and practices that violate the rights and welfare of IDPs and has been doing so for many years long before South Sudan gained its independence (Amnesty International 2017; Human Rights Watch 2017; BBC 2016).

How the Media and Politicians Marginalize IDPs

Law, and the policies reflecting it, are not the only causes of the marginalization and disadvantage of IDPs and their lack of human rights protection. The Secretary General of the Norwegian Refugee Council, Jan Egeland, has commented that, while much attention is paid to the precarious conditions of refugees globally, IDPs suffer from invisibility; not because their predicaments and realities cannot be witnessed, reported on, and addressed, but largely because of a willful looking away on the part of political and media actors (see Forced Migration Review 2005). In part because IDPs are considered the responsibility of the states in which they reside, other nations, in deference to the principle of sovereignty, typically look the other way to even egregious human rights violations, as long as they are limited to the borders of other states and these human rights violations do not create refugee flows or other impacts on neighboring states.

For example, while there has been massive media coverage and humanitarian response to the Syrian refugees who have found temporary and/or permanent refuge in Greece, Italy, Germany, and other European countries, much less attention is paid to the “6.6 million people that have been displaced within Syria alone” (Jones 2016). Jones (2016) further notes that the way in which governments and humanitarian aid agencies respond to displacement crises currently neglects a full appreciation of the causes and consequences of displacement: “Large crises such as Syria should lead to a new and more holistic thinking about displacement…A similar shift is needed in analysing the causes and consequences of displacement. We tend to think in terms of single, isolated triggers, but the reality is far more complex.” Jones emphasizes the need to link effective response to IDP needs with ongoing development aid projects. IDPs have development needs that need to be integrated into development efforts and acknowledged as ongoing and often requiring medium and long-term attention and investment, far beyond that offered to emergency humanitarian response for IDPs in the initial stages of displacement and the health, safety, and human welfare crises that often follow from it. ¹⁶ “When displacement becomes inevitable, humanitarians attend to more immediate needs, but they must work with the development sector if sustainable solutions are to be achieved. There is a clear trend of displacement becoming more protracted and more of a development challenge” (Jones 2016).

Often it is in a development context that IDPs receive the attention of humanitarian organizations once violent conflict has subsided and development aid agencies feel able to provide services. However, this can mean that IDPs lack basic services for years, as development is largely limited to areas where there is some basic standard of security.

Many IDPs and refugees remain IDPs and refugees for an extended period of five, ten, or more years. What should be a temporary classification becomes a semi-permanent one because of ongoing conflicts. As such, many IDPs receive social services in the context of ongoing development aid projects that are incidentally offered in the communities where they have relocated, but they typically do not receive humanitarian aid that is specifically targeted to them and their unique vulnerabilities and needs. In countries where there is civil war and violent instability this can go on for decades, limiting development and humanitarian aid severely for IDPs. ¹⁷

Mundt and Ferris (2008) have argued that IDPs have also been largely ignored by academic researchers in addition to the marginalization they face in the media and by many national authorities. Beyani, Baal and Caterina (2016) have illustrated the complexity and challenge of providing adequate provisions and services for IDPs, finding durable solutions for them, and coordinating humanitarian and development aid across diverse organizations with different resources, priorities, and funders. These efforts, they explain, often take place in contexts of physical insecurity (Beyani, Baal and Caterina 2016). Lack of political support for IDP support services by local and national authorities, and lack of sufficient infrastructure to provide the quality and quantity of humanitarian aid to which IDPs are entitled and require, additionally undermine efforts to realize the human rights of IDPs (Beyani, Baal and Caterina 2016).

Practical Recommendations to Address the Sovereignty Trap and Address the Rights and Welfare of IDPs

The 2016 World Humanitarian Summit in Istanbul concluded with a slew of “commitments”—rhetorical and not legally binding, and which ultimately will require decisive action to generate sustained political will to ensure at least some degree of implementation. Commitments to improving the rights and welfare of IDPs were made both directly in response to their IDP status and, importantly, acknowledged that many IDPs who suffer displacement as a result of natural disaster need better recognition and services and in relation to cross-cutting thematic issues, such as improving their access to education, the protection and rights of women, and the protection and rights of individuals with disabilities and the aged. The former UN Secretary General, Ban-Ki-Moon, describes these efforts as crucial to his Agenda for Humanity's aim to lower the number of IDPs globally by 50 percent. Pledges included:

A new approach to supporting IDPs and refugees that would both address immediate humanitarian aid needs and long-term development.

Increased programs to improve livelihoods and educational opportunities for displaced persons and a more predictable multi-year commitment of funding to insure their viability and reliability.

New financial services to be offered to IDPs to help mitigate their economic vulnerability and waive costly transaction fees.

Recognition of displacement as being caused by disasters and climate change, not only by war and other conflict.

Calls for an international mechanism and framework for the protection of people displaced by climate change.

The development of a platform on disaster displacement.

Reaffirmation of IDPs international human rights protection standards.

New efforts to strengthen domestic legislation to protect IDPs and expand implementation of the Kampala Convention.

Regarding cross-cutting, thematic issues that impact IDPs, particularly those from vulnerable groups such as women and children, the former UN Secretary General noted calls for gender equality, women's empowerment, and greater opportunities for women to take on leadership roles. New methods and financial resources for gender-equality programming were announced, as were plans to end tolerance of gender-based violence against women and girls. New commitments to advance sexual and reproductive health for girls and women and expanding opportunities for children to continue their education in crisis contexts were initiated. Still, the Secretary General's comments on the World Humanitarian Summit reflect primarily rhetorical commitments; there is nothing binding about them. Neither were the financial commitments serious, generous, and sustained enough to make a significant impact on the rights and welfare of IDPs.

In 2015, researchers at the Brookings Institute sought to reflect upon historical changes in the situation of IDPs (Ferris 2015). Ten years after their 2004 study, “Protect or Neglect: Toward a More Effective UN Approach to the Protection of Internally Displaced Persons” (Bagshaw and Paul 2004), the Brookings-LSE Project on Internal Displacement pursued a study, titled, “Ten Years After Humanitarian Reform: How Have Displaced Persons Fared?” (Ferris 2015). The study focused on Colombia, Congo, and Somalia, which had all been studied in the previous report. It asked if national governments were doing a better job of protecting the internally displaced and providing them with assistance and if reforms at UN agencies assisting IDPs yielded improved outcomes in realizing the rights and welfare of IDPs. Its conclusions were mixed. Ferris (2015), who authored the study, reflected that, while the international response to internal displacement has improved since 2004, it improved from a very low bar. Many of the improvements were not a direct result of humanitarian reform, and there is still a need for substantial improvement. Indeed, there remains a great deal of need and opportunity for improving the support IDPs receive and to further advance their capacities to realize their human rights.

Funding for humanitarian aid projects and development that focuses on IDPs remains too low and continues to be marginal to overall humanitarian and development spending—which itself reflects a massive gap between needs and funding provision, one which continues to grow. Although few of the challenges facing IDPs are simple, perhaps the least complicated ones are underfunding to meet their rights and needs and a lack of centralized coordination of services for them by a UN or other international agency that is a recognized address to fulfill their rights. ¹⁸ These are not the only issues that need to be addressed to achieve positive, significant change for IDPs. But it is highly unlikely that sustainable and substantive improvements in their conditions and access to human rights will follow unless member states of the UN, the UN itself, and UN agencies and NGOs make a much more concerted and intentional effort to address and respond to the unique needs, vulnerabilities, and disadvantages of IDPs and to do so in a coordinated way that expands and builds upon the UN's cluster approach.

In 2011, Walter Kalin, the UN Secretary General's Representative on the Human Rights of Internally Displaced Persons, reflected on improvements that were urgently needed to improve the rights and welfare of IDPs. It is valuable to return to and reaffirm these recommendations as a mandate for action for the UN, its member states, NGOs, and other international development and humanitarian aid organizations, because they remain as timely in 2022 as they were in 2011, and as the number of IDPs has grown so extensively since then—and lack of adequate provision for them in tandem—their urgency is increasingly evident. Kalin (2011) emphasized the need to:

Address IDPs caused by climate change and natural disasters, causes of IDPs that are often overlooked.

Address multiple forms of vulnerability and disadvantage, such as children, women, the ill, elderly, indigenous people, and the disabled.

Support states with limited capacity.

Better coordinate among UN and other humanitarian agencies assisting IDPs.

Close the gap between emergency response services for IDPs and long-term development efforts.

Better protect humanitarian spaces and provide adequate humanitarian aid that enables resilience.

Create a framework of justice and accountability for those who cause illegal arbitrary displacement.

Enable more extensive durable solutions that seek to end protracted displacement.

Kalin’s (2011) assessment is comprehensive and reflects ongoing failures that continue to characterize inadequate responses to IDPs.

A recent statement from the UN commenting on refugees and migrants—a draft of non-binding principles negotiated by UN member states released on August 2, 2016—reinforces the marginalization and invisibility of IDPs by referring in a very general and non-legally binding way to refugees and migrants, but making no mention of IDPs (Sengupta 2016b). A more formalized (but not legally binding) UN declaration known as the New York Declaration for Refugees and Migrants does make reference to IDPs, but largely in passing and with little consequence despite acknowledging in a general and non-committal way: “We note the need for reflection on effective strategies to ensure adequate protection and assistance for internally displaced persons and to prevent and reduce such displacement” (United Nations 2016). Indeed, the UN Special Rapporteur for the Human Rights of IDPs, Cecilia Jiminez-Damary, has stated that, “The New York Declaration that emerged from the 2016 UN Summit on Refugees and Migrants basically set aside this issue [of IDPs]” (United Nations 2017). Her predecessor, Chaloka Beyani, co-signed a letter along with David Miliband, President and CEO of the International Rescue Committee, Helen Clark, Administrator of the UN Development Program, Jan Egeland, Secretary General of the Norwegian Refugee Council, and Stephen O’Brien, Under-Secretary General for Humanitarian Affairs and Emergency Relief Coordinator emphasizing that the UN and its member states were not providing sufficient attention and support to protecting and realizing the human rights of IDPs. The letter stated,

When people flee their homes, they often hope to return within days or weeks. In reality, for most of them it takes years or even decades as conflict, destruction or occupation drags on, or due to fear of harassment or attack, lack of economic opportunity and other factors. Many soon slide into poverty, having sold jewelry or other assets and with few opportunities to support their families. They become particularly vulnerable to extortion, discrimination and abuse. Internal displacement often marks the beginning of a long struggle at the bottom or in the margins of society. Tackling this reality requires stepping up efforts to meet the immediate protection and assistance needs of IDPs, but also addressing the long-term political and development challenges resulting from internal displacement. To give internally displaced people the chance to return to a dignified life, they must have full freedom of movement, access to basic services, labour markets, health, education, adequate housing, sustainable livelihoods and secure land tenure. We must drive towards real, measurable improvements in their lives in the form of specific outcomes in health, education, economic well-being and safety. This requires strong leadership from national Governments. International organisations and bi-lateral partners must support those efforts to reduce protracted displacement and not only “manage” caseloads. (O’Brien et al. 2016)

In other words, less talk and more action and resources were demanded to challenge the status quo and improve the situation for IDPs now and in the future.

In 1998, in introducing the UN Guiding Principles on Displacement Francis, Deng (1998, 1997/1998) wrote that, “it is fair to say that the international community is more inclined than it is prepared, both normatively and institutionally, to respond effectively to the phenomenon of internal displacement.” Two years later he acknowledged that, “The Guiding Principles are only the beginning because they do not necessarily guarantee that protection and assistance will be provided to IDPs” (Deng 2000). In 2001, together with Robert McNamara, he stated,

It is almost universally agreed that more needs to be done to help the displaced. The overall response to a problem of enormous magnitude is woefully inadequate. Serious gaps in the UN and agency operational response to the needs of IDPs – including their protection - and continuing funding difficulties have plagued the international response. (Deng and McNamara 2001)

Today this characterization of the international community's response to IDPs by Francis Deng and, consequently, the barriers UN member states and the UN itself places on protecting and realizing the rights of IDPs, remains valid. Indeed, efforts to transform the UN Guiding Principles into reliable, sustainable, and comprehensive practice globally continue to be severely undermined. Until that time, IDPs may, tragically, find that their best hope is finding a way if at all possible—and for many it is impossible—to transform themselves from IDPs into refugees is by crossing an international border and in that way escaping the sovereignty trap and achieving some basic access to humanitarian aid and respect and fulfillment of their human rights.