NOVEMBER- DECEMBER 2021

COVER STORY
aspect is significant because it means
that states cannot abdicate their primary
responsibility towards their citizens while
hiding under the veil of sovereignty and
non-interference in internal matters.
The 1998 Guiding Principles reaffirm
that IDPs should be treated equally as
the rest of the citizens and it prohibits
discrimination based on their IDPs status.
The Kampala Convention, on its part,
restates the same ethos but differently.
It mandates states to refrain from,
prohibit and prevent arbitrary displacement
of population while at the same time
reaffirming the right of the IDPs not to
be arbitrarily displaced. In other words,
the primacy is put on the duty of states to
prevent displacement rather than the right
of population not be displaced.
In addition to the above instruments
which are widely regarded as a
foundational legal framework for the
protection of the displaced both at the
regional and international level, it is worth
noting that IHL plays an important role in
preventing displacement in the first place.
It prohibits the displacement of people
except if it is necessary for imperative
military reasons or the protection of the
civilians themselves.
A widespread or systematic policy of
displacement of civilians without such
justification may constitute a war crime or
a crime against humanity. There are many
other rules of IHL, notably those governing
the conduct of hostilities, that are crucial to
protect the civilian population and whose
violations often trigger displacement.
Under the Fourth Geneva Convention
and Additional Protocol I, it is a grave
breach of these instruments to deport
or transfer the civilian population of an
occupied territory, unless the security
of the civilians involved or imperative
military reasons so demand. Article 17 of
Additional Protocol II (dealing with noninternational
armed conflicts) notes: “The
displacement of the civilian population
shall not be ordered for reasons related
to the conflict unless the security of the
civilians involved or imperative military
reasons so demand… Civilians shall not be
compelled to leave their own territory for
reasons connected with the conflict.”
It has been argued that this provision
also covers “situations where the insurgent
party is in control of an extensive part of
the territory”. This means that insurgents as
well as states, are bound by the obligation
laid down therein.
This provision is now the basis for the
corresponding crime under the ICC Statute
applicable during an armed conflict not
of an international character, of ordering
displacement of a civilian population. The
expression “displacement of a civilian
population” appears to cover transfer both
within and beyond a border.
Despite clear prohibition of forced
displacement under all key branches of
international law including international
human rights law, international
humanitarian law, and international
refugee law, we continue to witness forced
displacement at a scale never seen before.
Most of the forced displacement we see
today emanates from ongoing conflicts
where belligerents continue to inflict
untold suffering on the population without
much accountability for such violations.
For example, in Syria, ongoing
conflict between government and its allied
forces and rebels has caused massive
displacement, condemning millions to
live as refugees in foreign countries while
others unable to escape the fighting have
been trapped in rebel-controlled areas,
which in effect makes them enemies of
the state because they are deemed willing
collaborators with rebels.
Effectively this unenvious status
deprives them of the essential basic
services and protection they might have
been entitled to from the state. Countless
reports by the UN-backed Syrian
Commission and others have demonstrated
the extent to which both the Syrian
government and rebels have been complicit
in causing forced displacement. Indeed,
these bodies have laid out incontrovertible
evidence indicating that such acts by the
government and rebels may amount to war
crimes and crimes against humanity.
In South Sudan, Yemen, Afghanistan,
Mali among others, ongoing conflicts
continue to be a major source of forced
displacement. Millions of men, women,
children continue to endure deplorable
living conditions with limited humanitarian
support. For example, the UN Group
of Eminent International and Regional
Experts on Yemen has noted how both
sides to the conflict continue to commit
massive violations with impunity, noting
that despite such violations by all sides to
the conflict “not one person from any of
the parties to the conflict has been held
responsible for any violations in Yemen”.
Millions have been internally
forcibly displaced while others have fled
the country. As noted by the Experts:
“Civilians in Yemen are not starving, they
are being starved by the parties to the
conflict.”
In South Sudan, multiple UN reports
have noted that indiscriminate attacks
against the civilian population and
lack of accountability for human rights
violations, political instability, the absence
of a transparent and inclusive process
towards national cohesion, as well as
South Sudan’s climatic vulnerabilities add
to an environment conducive to internal
displacement, and provide significant
obstacles to its resolution.
While a vast variety of causes of
displacement are prevalent in South
Sudan, armed conflict emanating from
inter-communal and political violence,
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