CM(2006)36 Addendum 8 March 20061
961 Meeting, 5 April 2006
10 Legal questions
10.1 Ad hoc Committee of Experts on the Legal Aspects of
Territorial Asylum, Refugees and Stateless Persons (CAHAR)
b. Draft Recommendation Rec(2006)… of the Committee of Ministers to member states on internally displaced persons
The international community has been made increasingly aware of the crises generated by internal displacement in Europe. This is reflected, for instance, in the number of recommendations recently adopted by the Parliamentary Assembly of the Council of Europe on this issue2. Today, the number of internally displaced persons (hereinafter “IDPs”) in Council of Europe member states outnumbers the number of asylum seekers.
The legal situation of displaced persons in Europe was first identified as an area for future work by the Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) at its 53rd meeting (17-19 April 2002). At its 54th meeting (26-28 March 2003), the CAHAR held an exchange of views on this issue following the adoption by the Parliamentary Assembly of its Recommendation 1569 (2002) on the situation of refugees and displaced persons in the Federal Republic of Yugoslavia and of Recommendation 1570 (2002) on the situation of refugees and displaced persons in Armenia, Azerbaijan, and Georgia. At the same meeting, the UN Guiding Principles were distributed to all participants who discussed their relevance in the European context. On 2 July 2004, in its reply to Parliamentary Assembly Recommendation 1631 (2003) on internal displacement in Europe, the Committee of Ministers informed the Parliamentary Assembly that the CAHAR had decided to set up a Working Party with a view to elaborating a recommendation on internally displaced persons. The Working Party itself was unable to meet in 2003/2004, the available resources having been allotted as a matter of priority to other CAHAR activities. The CAHAR adopted the terms of reference of its Working Party on Internally Displaced Persons (CAHAR-IDP) at its 55th meeting (20-22 October 2004).
In accordance with its terms of reference, the CAHAR-IDP started its work in July 2005 and completed it in October 2005, having held three meetings during this period.
At its last meeting, the CAHAR-IDP adopted the preliminary draft recommendation and took note of the draft explanatory memorandum relating thereto, which were transmitted to the CAHAR for its approval. The draft recommendation was approved by the CAHAR on 24 November 2005 and adopted by the Committee of Ministers of the Council of Europe on ….
The aim of this recommendation is threefold. First, it aims at promoting and encouraging the implementation of the UN Guiding Principles on Internal Displacement in the member states of the Council of Europe. The UN Guiding Principles, whose special importance has already been underlined by the Committee of Ministers3, draw their authority from the fact that they are based upon and are consistent with international human rights instruments and international humanitarian law. They are meant to be universal standards to guide governments as well as international organisations in their efforts to assist and protect displaced persons.
The second aim of the recommendation is to go beyond a mere restatement of the UN Guiding Principles. By building on the existing standards elaborated within the Council of Europe, the recommendation underlines the importance in the IDP context of certain obligations undertaken by the Council of Europe member states that go beyond the level of commitments reflected in the UN Guiding Principles. In this respect, reference is made in this recommendation to the European Convention on Human Rights (hereinafter “ECHR”) that constitutes a highly effective tool for the protection of IDPs in Europe.
The third aim of this recommendation is to raise awareness on certain issues which Council of Europe member states consider of particular relevance as regards the situation of IDPs in Europe today.
At the same time, the recommendation seeks to reflect good practices in the protection of and assistance to IDPs.
Commentary on the provisions of the Recommendation
The first paragraph of the Preamble is to be considered in the light of the Final Declaration of the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005) which served to reaffirm the Council of Europe’s commitment to the fundamental values of democratic societies: “The Council of Europe shall pursue its core objective of preserving and promoting human rights, democracy and the rule of law. All its activities must contribute to this fundamental objective. We commit ourselves to developing those principles, with a view to ensuring their effective implementation by all member states”.
The second paragraph of the Preamble mentions “a large number” of IDPs. According to the information available, the number of IDPs in Council of Europe member states is estimated at 2.5 million4.
The terms used in the rest of the paragraph reflect the definition of internally displaced persons as provided in the introduction to the UN Guiding Principles on Internal Displacement.
The third paragraph of the Preamble refers to the existence of the UN Guiding Principles on Internal Displacement.
Completed in 1998 by a group of international legal experts led by Mr Francis Deng, Representative of the Secretary-General of the United Nations on Internally Displaced Persons, the UN Guiding Principles constitute the first international instrument on IDPs reflecting and consistent with existing international law. They aim at addressing situations of internal displacement in a systematic and predictable manner and at promoting a better co-ordination between international humanitarian organisations and other appropriate actors.
The UN Guiding Principles have gained international support: in September 2005, Heads of State and Government gathered at the UN World Summit “recognise[d] the Guiding Principles on Internal Displacement as an important international framework for the protection of internally displaced persons and resolve[d] to take effective measures to increase the protection of internally displaced persons”5. Earlier, the General Assembly of the United Nations and the United Nations Commission on Human Rights welcomed “the fact that the Representative of the Secretary-General has made use of the Guiding Principles on Internal Displacement in his dialogue with Governments and intergovernmental and non-governmental organizations, and request[ed] him to continue his efforts in that regard”6. The United Nations Commission on Human Rights also found that the UN Guiding Principles constitute “an important tool for dealing with situations of internal displacement” and welcomed the fact that “an increasing number of states, United Nations agencies and regional and non-governmental organisations are applying them as a standard”7.
At the 56th session of the General Assembly, the European Union expressed its attachment to the UN Guiding Principles as a benchmark with regard to the assistance and protection of IDPs. The Parliamentary Assembly of the Council of Europe expressed “its appreciation of the decisive role played by the Representative of the United Nations Secretary-General on Internally Displaced Persons in the development of the Guiding Principles on Internal Displacement. These principles constitute a standard for governments and other responsible authorities and intergovernmental and non-governmental organisations, and are an important tool in their work for displaced persons.”8
The seventh paragraph of the Preamble first recalls that, as citizens of their country, IDPs remain under the protection of their own country. There is therefore an important distinction in international law between “refugees”, who have lost the protection of their own country and whose legal status is governed by international binding instruments (the 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol), and “IDPs” for whom international law does not provide for any specific binding instrument. IDPs are entitled to the same rights as any other citizens. In particular, in accordance with Article 1 of the ECHR, they must be able to exercise the rights and freedoms defined in the Convention.
The tenth paragraph of the Preamble recalls the prohibition of arbitrary displacement. The protection against arbitrary displacement can be inferred from the compliance with a number of provisions of the ECHR, in particular from Article 2 of Protocol No. 4 to the ECHR as well as from Articles 3 and 8.
According to Article 2 of Protocol No. 4 to the ECHR, “everyone lawfully within the territory of a State has the right to liberty of movement and free choice of his or her residence”. Restrictions of these rights must be in accordance with the law and necessary in a democratic society for the achievement of the aims enumerated in Article 2 para. 3.
Article 3 ECHR prohibits both torture and inhuman and degrading treatment. In a number of cases, the European Court of Human Rights (hereinafter, “the Court”) has held that acts such as the demolishment or burning of houses, crops and belongings, with the intention of intimidation or displacement of persons, may cause severe mental suffering which violates Article 3 ECHR9. Similarly, the Court has held that in cases where people had been forced to leave their place of habitual residence by the hands of security forces, which had burnt and destroyed their houses, a violation of both Article 8 ECHR and Article 1 of Protocol No. 1 to the ECHR had occurred10.
Text of the Recommendation
Armed conflicts remain the first most significant cause of internal displacement. Yet, as shown recently by the Tsunami which hit Southern Asia in December 2004, by hurricane Katrina which hit the United States of America in August 2005 or by the earthquake in Kashmir in October 2005, natural disasters might lead to large-scale displacement. The needs of IDPs resulting from natural or man-made disasters are no less important than those stemming from armed conflicts. However, the cause of displacement is a key factor in determining the best suitable relief operations for IDPs.
This paragraph aims at ensuring that IDPs are not being discriminated against.
The 46 member states of the Council of Europe are bound by Article 14 ECHR that prohibits discrimination in the enjoyment of the rights and freedoms set forth in the Convention. Article 14 does not provide for an independent, but rather for an accessorial right; the scope of the non-discrimination clause is restricted to the enjoyment of the rights and freedoms described in the ECHR. Thus, this non-discrimination clause can be called upon only taken together with substantive rights of the ECHR. However, its applicability does not depend on the finding of a violation of one of the substantive rights and freedoms. In this respect, the prohibition of discrimination is autonomous.11
In addition, the general principle of equal treatment and non-discrimination between displaced persons and the rest of the population is strengthened by Protocol No. 12 of the ECHR which is already in force for those eleven Council of Europe member states that have ratified it. Article 1 of Protocol No. 12 provides: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1”.
“Relevant international law standards” mentioned under paragraph 3 include standards provided by the Council of Europe Framework Convention for the Protection of National Minorities (ETS N°157), the United Nations Convention on the Rights of the Child and Article 27 of the International Covenant on civil and political rights.
The terms “most vulnerable groups” refer to those persons identified in paragraph 2 of Principle 4 of the UN Guiding Principles which provides that “Certain internally displaced persons, such as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of household, persons with disabilities and elderly persons, shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs.”
The first sentence of this paragraph reflects the general principle under international law of state sovereignty. It is the primary responsibility of the State concerned to protect IDPs and their rights as well as provide humanitarian assistance to them. This flows from the very nature of international law.
The term “state concerned” refers to the state affected by internal displacement on its national territory. However, in exceptional circumstances determined by the highest international organs, it may also refer to a third state if this state exercises effective control or de facto authority over a territory located outside its internationally recognised borders. The terms may also refer to an international body whose responsibility under international law entails protection and assistance to IDPs such as, for instance, the United Nations Mission in Kosovo set up by UN Security Council Resolution 1244 (1999). Article 9 (c) of Resolution 1244 (1999) states: “The responsibility of the international security presence to be deployed and acting in Kosovo will include […] establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered.”
With respect to the second sentence of this paragraph, it should be recalled that the delivering of humanitarian assistance by states or international organisations, is conditional on consent being granted by the state concerned. 12
With respect to the third sentence, the words “to arbitrarily refuse offers” refers to a refusal which is not reasonably justified or which is not in accordance with the law. The refusal of any offer made by an international organ responsible for humanitarian assistance would constitute an “arbitrary refusal”.
Although member states are not bound to provide aid to those states affected by internal displacement, they should be encouraged to agree to providing such aid if they are requested to do so by the state concerned.
In the context of this paragraph, one should not lose sight of the absolute necessity of ensuring that financial aid provided by national or international bodies is not diverted from its original destination, that it is being distributed in a transparent way, and that accountability is ensured at every stage in the aid process.
This paragraph refers to member states’ obligations under Articles 2, 3 and 5 of the ECHR. Some of these obligations are “positive” obligations and are of particular interest in the context of this recommendation as they widen, for Council of Europe member states, the scope of Principles 10 (right to life), 11 (right to physical integrity), 12 and 14 (right to liberty and security) of the UN Guiding Principles.
The right to life is guaranteed by Article 2 of the ECHR, whose paragraph 1 provides that “Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
Article 2 of the ECHR imposes on the contracting states not only the duty to respect life, but also an obligation to investigate when individuals have been killed, in particular as a result of the use of force13 or when they have disappeared at the hands of the police or security forces14.
Article 3 of the ECHR prohibits in absolute terms torture and inhuman and degrading treatment and punishment. In addition, the Court found that Article 3 imposes on the states a duty to investigate cases of alleged treatment contrary to this guarantee.
Article 3 ECHR does not exclusively refer to the infliction of physical, but also to that of mental suffering. This is especially relevant in the context of actions that aim at terrorizing and displacing persons. The Court has repeatedly held that the destruction of houses and possessions, coupled with the anguish and distress suffered by applicants and their families, caused suffering of sufficient severity for the acts of the security forces to be categorised as treatment in violation of Article 3 of the ECHR15. Furthermore, the Court has also found that the agony suffered by relatives of missing persons, who do not know the whereabouts and situation of the missing, can constitute an inhuman treatment within the meaning of Article 3 of the ECHR16.
The right to liberty and security of person, as stipulated by Article 5 of the ECHR, aims at ensuring that no one is deprived of his liberty in an arbitrary manner. The right to liberty and security imposes also positive obligations on member states, namely to take effective measures to protect persons against disappearances and to conduct effective investigations into claims that persons have disappeared from detention.
The second sentence of Paragraph 6 is based on the established fact that, all too often, IDP camps are places where IDPs run a serious risk of being the victims of a violation of their most fundamental rights. This is particularly true in situations of armed conflict. To limit this risk, the civilian character of such camps must be guaranteed at all costs.
Respect for family life is of particular importance for IDPs for whom family often represents the last and only stable element in their life following displacement. The right to respect for family life is guaranteed by Article 8 of the ECHR, whose paragraph 1 provides “Everyone has the right to respect for his private and family life, his home and his correspondence”. The principle that family life must be protected in situation of displacement is firmly rooted in the Court case-law.
Respect for family life implies the right for members of a displaced family to remain together if they wish so. Member states are not allowed to act in a way that would hinder the development of family ties17. Article 8 of the ECHR imposes not only negative but also positive obligations. In situations where family members have been separated, member states must take steps to reunite them or at least ensure that contacts between family members can be held.
With regard to “family members”, the Court considers that family ties can exist, between non-marital partners, between siblings, grandparents and grandchildren, or uncles and aunts and nephews and nieces18.
“Competent authorities” are hereby defined as the local or national authorities which are responsible for IDPs in the state concerned.
This paragraph should be read in conjunction with Principle 20 of the UN Guiding Principles in accordance to which “1. Every human being has the right to recognition everywhere as a person before the law. 2. To give effect to this right for internally displaced persons, the authorities concerned shall issue to them all documents necessary for the enjoyment and exercise of their legal rights, such as passports, personal identification documents, birth certificates and marriage certificates. In particular, the authorities shall facilitate the issuance of new documents or the replacement of documents lost in the course of displacement, without imposing unreasonable conditions, such as requiring the return to one's area of habitual residence in order to obtain these or other required documents. 3. Women and men shall have equal rights to obtain such necessary documents and shall have the right to have such documentation issued in their own names.”
The right to recognition everywhere as a person before the law is of great importance for IDPs, particularly in so far as it implies access to personal identification documentation, such as certificates of birth, marriage, or death as well as identity cards. Indeed, many problems emerge from the lack of such documentation, from lack of access to social services, formal employment, banks and education, to the inability to register to vote, essentially rendering IDPs aliens in their own country.
Documents that IDPs should possess can either be the original ones, new documents issued in replacement of these documents or any new documents required in order to benefit from the rights IDPs are entitled to.
In practice, it is useful, with a view to implementing and giving effect to Principle 20, to recognise de facto addresses for the issuing of documents or to waive the cost of documents, if this is what prevents effective access to them. The creation of specific institutions or dislocated offices may also facilitate the issuing of these documents.
The right to protection of property is guaranteed under Article 1 of Protocol N° 1 of the ECHR. The first paragraph of this Article provides that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” Article 1 comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph of Article 1, recognises that member states are entitled “to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
It could be recalled that in accordance with a well-established case-law of the Human Rights Chamber for Bosnia and Herzegovina, "occupancy rights" are also protected by Article 1 of Protocol No. 1 of the ECHR.19
With regard to the duty to compensate for state interferences with property, the Court has found that “the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 only under exceptional circumstances”.20
With a view to preventing unlawful deprivation and destruction of property, the state concerned should take appropriate measures to protect property and possessions left behind by IDPs following their displacement.
This paragraph calls for the development of preventive measures capable of limiting adverse consequences in cases of internal displacement. The drawing up of strategic action plans is an example of this type of measure. Other examples could include the setting-up of an adequate system of registration of property with a view to facilitating repossession by IDPs upon their return. With regard to the prevention of natural or man-made disasters, accession to international agreements such as the Kyoto Protocol to the United Nations Framework Convention on climate changes or the development of effective early warning systems could also be considered.
The IDPs’ right to be informed and consulted in accordance with this paragraph is particularly important with respect to reintegration and rehabilitation programmes proposed to IDPs.
In accordance with the ECHR, IDPs have the right to return voluntarily to their areas of origin as well as the right to resettle in another part of the country.
These rights are guaranteed by Article 2 Protocol N° 4 of the ECHR whose first paragraph reads: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”.
To ensure that return will be sustainable, conditions in the area of origin should be conducive to a lasting reintegration of returnees. Competent authorities of the member states should secure the voluntary return of IDPs to their place of origin by creating an area of safety and ensuring the peaceful settlement of conflicts.
Moreover, to enable self-reliance of IDPs, competent authorities should provide adequate accommodation, health and education facilities and, as far as possible, employment opportunities.
Note 1 This document has been classified restricted at the date of issue. It was declassified at the 961st meeting of the Ministers’ Deputies (05 April 2006) (see CM/Del/Dec(2006)961/10.1b).
Note 2 The most recent recommendations of the Council of Europe Parliamentary Assembly include : Rec 1652 (2004) on education of refugees and internally displaced persons; Rec 1667 (2004) on the situation of refugees and displaced persons in the Russian Federation and some other CIS countries; Rec 1631 (2003) on internal displacement in Europe; Rec 1588 (2003) on population displacement in South-Eastern Europe: trends, problems, solutions; Rec 1570 (2002) on the situation of refugees and displaced persons in Armenia, Azerbaijan and Georgia; Rec 1569 (2002) on the situation of refugees and internally displaced persons in the Federal Republic of Yugoslavia; Rec 1563 (2002) on the humanitarian situation of the displaced Kurdish population in Turkey.
Note 3 See the Reply from the Committee of Ministers to the Council of Europe Parliamentary Assembly Recommendation 1631 (2003) on internal displacement in Europe, adopted at the 890th meeting of the Ministers’ Deputies (30 June 2004).
Note 4 Information extracted from the online database of the Global IDP Project (http://www.idpproject.org/). (The Geneva-based Global IDP Project was piloted by the Norwegian Refugee Council (NRC) in 1996. In late 1998 the UN Inter-Agency Standing Committee endorsed the outsourcing of the development of an IDP database to the NRC).
Note 5 A/RES/60/1, paragraph 132.
Note 6 Respectively Resolutions No. A/RES/56/164, 19 December 2001, and E/CN.4/RES/2001/54, 24 April 2001.
Note 7 Resolution No. E/CN.4/RES/2003/51, 23 April 2003.
Note 8 Recommendation of the Council of Europe Parliamentary Assembly 1631 (2003) on internal displacement in Europe.
Note 9 Selcuk and Asker v. Turkey, No. 12/1997/998-999, judgment of 24 April 1998, Reports 1998-II, paras. 72-80; Yöyler v. Turkey, No. 26973/95, judgment of 24 July 2003, paras. 71-76; Hasan Ilhan v. Turkey, No. 22494/93, judgment of 9 November 2004, paras. 104-109.
Note 10 See, e.g., Dogan and others v. Turkey, Nos. 8803-8811/02, 8813/02 and 8815-8819/02, judgment of 29 June 2004, paras. 134-160.
Note 11 Willis v. the United Kingdom, No. 36042/97, judgment of 11 June 2002, Reports 2002-IV, para. 29.
Note 12 “3. The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country.” Extract from United Nations General Assembly Resolution No. A/RES/46/182, 19 December 1991, on the strengthening of the coordination of humanitarian emergency assistance of the United Nations. See also United Nations General Assembly Resolution No. A/RES/43/181, 8 December 1988, on humanitarian assistance to victims of natural disasters and similar emergency situations.
Note 13 McCann and others v. United Kingdom, No. 18984/91, judgement of 27 September 1995, serie A324, para. 164.
Note 14 Cyprus v. Turkey, No. 25781/94, judgment of 10 May 2001, Reports 2001-IV, paras. 132-136.
Note 15 Selcuk and Asker v. Turkey, No. 12/1997/998-999, judgment of 24 April 1998, Reports 1998-II, paras. 77-78; Hasan Ilhan v. Turkey, No. 22494/93, judgment of 9 November 2004, para. 108; Yöyler v. Turkey, No. 26973/95, judgment of 24 July 2003, para. 75.
Note 16 Cyprus v. Turkey , No. 25781/94, judgment of 10 May 2001, Reports 2001-IV, paras. 154-158; Ipek v. Turkey, No. 25760/94, judgment of 17 February 2004, paras. 178-183.
Note 17 Kroon and others v. the Netherlands, No. 18535/91, judgment of 27 October 1994, Series A297-A, para. 32.
Note 18 Marckx v. Belgium, n° 6833/74, judgment of 13 June 1979, Series A31, para. 45.
Note 19 See for instance, M.J. v. the Republika Srpska, case No. CH/96/28, decision of 7 November 1997, para. 32 and Kevešević v. the Federation of Bosnia and Herzegovina, case No. CH/97/46, decision of 10 September 1998, para. 73.
Note 20 The Holy Monasteries v. Greece, Nos.13092/87; 13984/88, judgement of 9 December 1994, Serie A301-A, para. 71.