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Persons displaced during conflicts have the right to return

Strasbourg 15/09/2008
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Armed conflict and inter-ethnic violence still force people to run from their homes and seek refuge in safer places. The outbreak of the war in South Ossetia this August 2008 has created a new wave of displaced persons, some of whom may have to wait a long time before being able to return home. In Georgia, as in other parts of the Caucasus and in former Yugoslavia, there are still many who have had to wait for more than a decade following earlier conflicts and therefore have been doubly victimized.

Having just returned from Russia and Georgia, I have seen once again the huge humanitarian challenge caused by such forced displacement, compounded by a polarized political environment. A large number of the victims with whom I met were deeply traumatized and some of those in Georgia lacked the very basics, such as beds, mattresses, blankets, adequate nutrition and medical assistance. Parents were worried about their children missing school.

It was also very sad to see that their experiences have given rise to strong feelings against their neighbour community; Ossetians towards Georgians and vice versa. An unfortunate mix of fear and hatred has taken root which may in future make it more difficult for those in the minority position to return.

The principle of the right to return must be defended even in such situations and this right must be ensured by the responsible authorities. This requires that potential returnees are guaranteed security which in turn underlines the importance of bringing those who caused the displacement to justice. It is also essential that other living conditions are adequate, for instance, that damaged houses are repaired or rebuilt and occupied property is returned to lawful owners.

In reality, such return may be very complicated even when political and material obstacles are removed. A hostile atmosphere is not easily talked or bought away - as seen in Bosnia and Herzegovina where displaced people have sold their houses rather than move back. Though this tendency may indicate failure, it is important to underline that return always must be voluntary, it is not an obligation.

It is estimated that there are about 2.5 million internally displaced persons (IDPs) in Europe today. The majority of them fled or were chased away in situations of inter-community confrontation; their safety was in danger. Those who have crossed international borders for similar reasons and have no protection are seen as refugees and have a different legal status.

Unlike refugees whose protection by host states is clearly provided for by the 1951 Convention relating to the Status of Refugees, IDPs have not been the subject of a special international treaty. This does not mean that they are in a legal vacuum. The European Convention on Human Rights, for example, is applicable to them if they are in a contracting state’s territory. Indeed, the European Court of Human Rights has on many occasions been seized with applications and provided relief to IDP applicants(1).

The Representative of the UN Secretary-General on the Human Rights of IDPs, has promoted three durable solutions which as a matter of principle should be sought by the competent authorities. He has made clear that States have the duty to establish conditions and provide the means which would allow the displaced persons to enjoy one of the following options:

Voluntary return: that the IDPs return to their homes or places of habitual residence in safety and with dignity;
Voluntary resettlement: that they resettle in another part of the country; and
Integration locally: that they get support for their choice to stay in the community where they are and integrate there.

In the course of any of these three possible processes, all of which necessitate strenuous efforts and determination on the part of the State, the competent authorities should not forget to ensure the full participation of the displaced persons themselves in the planning and management of the required measures.

These State obligations are part of the United Nations Guiding Principles on Internal Displacement which restate the relevant international human rights and humanitarian law standards. The Council of Europe’s Committee of Ministers has recognised the importance of these principles in their Recommendation on internally displaced persons(2), which develops some of the principles further on the basis of the existing Council of Europe standards..

A systematic review of national legislation and practice in order to bring such practice in line with the UN Guiding Principles and other relevant international instruments of human rights or humanitarian law is highly recommended. These Principles are now particularly relevant to member states who are directly or indirectly involved in the current South Ossetian crisis.

There are examples from recent history where large groups of displaced persons have been kept in unacceptable conditions and even in tent camps. Their suffering has been used as a propaganda tool in order to illustrate that the political problem left behind stays unresolved. Such a policy is not acceptable; it amounts to keeping already victimized people as hostages for political purposes. As the Committee of Ministers’ Recommendation 2006(6) underlines “member states affected by internal displacement should refrain from instrumental use of displaced persons for political aims”. IDPs have the right to adequate living conditions while waiting for their return or another long-term solution.

For obvious reasons, displaced persons tend to flee to areas where they would not be in a minority position, where people from the same ethnic, religious or national community live. However, there are IDPs who either choose not to do this or for whom this is not an option, the Roma for example. Action plans on IDPs therefore need to give particular attention to minority groups in order to avoid a further cycle of violations. Many persons from minority groups may need special protective measures given that they may lack proof of identity or residence before their displacement.

Children are particularly at risk in these crisis situations. Their rights must be protected and it should be recalled that the UN Convention on the Rights of the Child continues to apply even in the abnormal situation of forced internal or external displacement. Children, especially those who become unaccompanied during armed conflicts, should be the subject of particular attention and assistance by competent authorities in order to guarantee their basic needs and rights, including housing and access to education. Women and girls are also at a heightened risk of abuse and gender-based violence. Survivors of violence and torture require specific support.

We also must not forget that States have the duty to prevent displacement disasters from taking place in the first place. The UN Guiding Principles state that, “all authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons (Principle 5).

In modern Europe, the root causes of forced displacement are found primarily in the more or less violent emergence of nation-states and in the lack of broadminded and tolerant policies towards national minorities, as required by European democratic values.

European history continues to teach us, bitterly but clearly, that effective protection and promotion of the rights of national minorities are essential for stability, democratic security and peace on our continent. Governments have still to realize that the creation of a climate of tolerance and dialogue is necessary to enable ethnic and cultural diversity as a factor, not of division, but of enrichment and cohesion for European societies.
The Council of Europe provides a wealth of standards for the protection of IDPs and, above all, the prevention of their forced displacement. Member states should reflect more profoundly on them and adopt a genuinely proactive stance in order to ensure the effective respect and implementation of these principles by which they are bound.

Thomas Hammarberg


1. See e.g. Loizidou v Turkey, judgment of 18/12/1996, concerning the applicant’s lack of access to her property and loss of control thereof after she became an IDP in Cyprus, Khamidov v Russia, judgment of 15/11/2007, concerning, inter alia, the violation of the displaced applicant's right to respect for his home and his right to peaceful enjoyment of his possessions in Chechnya.
2. See the Committee of Ministers Recommendation (2006)6 on internally displaced persons and also Council of Europe’s Parliamentary Assembly Recommendation 1631 (2003).