From Responsibility to Response: Assessing National - Brookings

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CHAPTER 2 Case Studies: Georgia, Kenya, Afghanistan and Sri Lanka through intensive consultations with the parties to the conflict that were facilitated by OSCE and UNHCR, which also offered technical assistance, in 2007 (see also Benchmark 10). 79 In 2006, the State Commission for the Elaboration of a State Strategy on Internally Displaced Persons (see Benchmark 6) established a legal issues working group, co-chaired by the Ministry of Justice and UNHCR, which identified other issues and put forth additional recommendations for necessary legislative amendments to strengthen the legal framework for protecting the rights of IDPs. 80 The state strategy that was adopted in 2007 affirms in its preamble the expectation that in implementing the strategy, the state and the local authorities act in accordance with the Constitution of Georgia, the legislation of Georgia, and the UN Guiding Principles on Internal Displacement, within the framework of internationally recognized human rights and norms determined by international law. It includes an express affirmation that “IDPs shall be protected against illegal eviction.” The strategy further notes that “from the legal viewpoint, IDPs have all the rights as other citizens of Georgia; despite this, however, they are not fully integrated in the society”; to this end “it is necessary to create the conditions, or to eradicate the hindering factors, for IDPs to enjoy legal, political, living and socio-economic conditions like other citizens of Georgia.” 81 79 Brookings-LSE Project on Internal Displacement, “National and Regional Laws and Policies on Internal Displacement: Georgia” (www.brookings.edu/projects/ idp/Laws-and-Policies/georgia.aspx). 80 The author, seconded to UNHCR, served as co-Chair, with the Deputy of the Ministry of Justice, of this working group, which submitted a report to the state commission in November 2006 (internal document, on file with author). 81 Government of Georgia, State Strategy for Internally Displaced Persons–Persecuted Persons (2007), Preamble; Chapter V, Section 2.2; Chapter III, Section 2.2.1. 196 UNHCR subsequently has identified the following areas of the law as requiring amendment and/or elaboration in order to bring Georgian legislation in line with international standards and to contribute to effective application of the laws and regulations on IDPs: IDP status; social benefits and allowances; shelter; and protection from forced return or resettlement. 82 In July 2010, UNHCR reported to the UN Human Rights Committee that “IDPs still face discrimination with regard to some specific sectors of legislation”; for example, IDPs cannot participate in the privatization of arable land on the same terms as the local population, 83 although it is not clear whether the problem is a matter of the law itself or a matter of interpretation and implementation. 84 To address these and other remaining gaps in the legislation, UNHCR has recommended that there be “a comprehensive review of Georgian legislation governing the treatment of or indirectly impacting on IDPs.” 85 Moreover, it is significant that the steering committee for implementation of the State Strategy on Internally Displaced Persons (see below) has established several temporary expert groups (TEGs) addressing various legal issues of particular pertinence to IDPs and has produced legal and policy guidance, including the above-mentioned Standard Operating Procedures on Vacation and Re-Allocation of IDPs for Durable Housing Solutions. The work of three of the four TEGs in existence in mid-2011 has an strong legal dimension, namely the TEGs on privatization; on complaints and redress mechanisms; and on guiding principles on durable housing solutions. Finally, regarding the legal framework in place for safeguarding the rights of IDPs, it is important to be aware of the de facto legislation enacted by the nonstate controlling authorities in Abkhazia and South Ossetia. 86 82 UNHCR, Gap Analysis, 2009, p. 13. 83 UNHCR, Submission to UPR: Georgia, para. 11. 84 E-mail correspondence with NRC, Georgia, May 2011. 85 UNHCR, Submission to UPR: Georgia, para. 11. 86 For a summary of the most relevant legislation adopted by the de facto authorities in each region, see UNHCR, Gap Analysis, p. 13.
Georgia From Solidarity to Solutions: The Government Response to Internal Displacement in Georgia In Abkhazia in particular, the de facto authorities have passed numerous laws and acts that impact the rights of IDPs and especially returnees regarding “citizenship” and property registration and transfer of ownership. 87 These laws have no force under international law, which does not recognize them or the de facto authorities. Even so, as UNHCR points out, the de facto legislation does create administrative hurdles for IDPs who want to return and has the effect of creating “at the very least a psychological obstacle to IDP return.” 88 In addition, there have been widespread reports that in the aftermath of the August 2008 conflict, the de facto authorities in South Ossetia have imposed requirements (besides preexisting legislation by which IDPs from Georgia were classified as “refugees”), such as for notarized translation of identity cards, for persons to cross the administrative boundary line adjacent to Akhalgori. At the same time, the Georgian Law on Occupied Territories reportedly is invoked by Georgian law enforcement officials as the legal basis for limiting freedom of movement toward Akhalgori for both persons and goods (see also Benchmark 12). 89 6. Develop a National Policy on Internal Displacement Has the national government adopted a policy or plan of action to address internal displacement? That the government should adopt a national policy for addressing internal displacement in accordance with the Guiding Principles on Internal Displacement first was 87 For a summary, see for instance, UN Commission on Human Rights, Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin—Mission to Georgia (21 to 24 December 2005), 24 March 2006, paras. 20, 41 and 48. 88 UNHCR, Gap Analysis, Section 2.2.1, p. 13. 89 Council of Europe, Report on Human Rights Issues Following the August 2008 Armed Conflict in Georgia, by Thomas Hammarberg, Commissioner for Human Rights, Strasbourg (7 October 2010), CommDH(2010)40, para. 11. 197 recommended to the government in 2000, during the mission to Georgia by Francis Deng, Representative of the Secretary-General on the Human Rights of Internally Displaced Persons. In particular, the RSG recommended that the government develop a more comprehensive approach to durable solutions to displacement that went beyond simply emphasizing IDPs’ “right to return” to also improving the living conditions of IDPs in their current place of displacement and thereby cease viewing these goals as mutually exclusive. 90 When Deng’s successor, Walter Kälin, visited the country in 2005, he was pleased to learn that the government had finally begun to make plans to draft a national strategy for IDPs in line with those recommendations. RSG Kälin strongly encouraged that initiative and recommended that the national policy be rights-based and comprehensive, with the aim of supporting IDPs’ integration into society and access to adequate living arrangements while maintaining their option to return. Kälin also advocated that the government consult closely with civil society groups, including IDPs, in the process of designing the policy, and that UNHCR and the wider international community assist the government in its efforts. 91 In February 2006, the State Commission for Elaborating the State Strategy for Internally Displaced Persons was established. 92 The commission was chaired by the Minister of the MRA; other members included the Ministers of Finance; of Justice; of Economic Development; of Labor, Health and Social Affairs; of Education and Science; Agriculture; Civil Integration; and Reforms Coordination; as well as the Deputy Minister of Foreign Affairs and the chair of the Abkhaz 90 UN Commission on Human Rights, Report of the Representative of the Secretary-General on Internally Displaced Persons, Mr. Francis Deng—Addendum: Profiles in Displacement: Georgia, 2001.para. 130(iii)-(iv). 91 UN Commission on Human Rights, Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin— Mission to Georgia (21 to 24 December 2005), 24 March 2006, paras.18 and 56-57. 92 Government of Georgia, Decree No. 80, 23 February 2006.
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The Brookings Institution - London
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From Responsibility to Response: As
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CONTENTS Acronyms .................
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ACRONYMS AIHRC Afghanistan Independ
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FOREWORD It is with great pleasure
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ACKNOWLEDGMENTS Given the large num
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It is a central tenet of internatio
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legislation relevant to IDPs. Still
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amend existing ones, in line with t
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Background and Aims of the Study In
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displacement persists for several y
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operationalizing the responsibiliti
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Therefore, it is not surprising tha
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Azerbaijani, Chinese, French, Portu
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National Initiatives In Iraq, IOM p
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of the country. 62 In addition, six
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in French and Spanish depending on
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serves only to supplant and absolve
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CHAPTER 1 Assessing National Approa
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Benchmark 1 Benchmark 1 Prevent Dis
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Benchmark 1 Prevent Displacement an
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Benchmark 2 Raise National Awarenes
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Conclusion Benchmark 2 Raise Nation
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Benchmark 3 Data Collection on Inte
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—Current location and location of
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its registration rolls intra-urban
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and profiling of three types of IDP
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the government of Afghanistan under
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Benchmark 4 Training on the Rights
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actions of DRC authorities and nong
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the provision of technical support
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Justice, National Cohesion and Cons
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February 2010; one outcome of the t
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Benchmark 5 Ensure a Legal Framewor
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Conclusion Benchmark 5 Ensure a Leg
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Benchmark 6 Develop a National Poli
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Benchmark 7 Designate an Institutio
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not necessarily influence such chan
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Institutional mandate and responsib
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this body include preparing “stra
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lead state agency may turn to other
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a division of functions being made
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Benchmark 8 Benchmark 8 Support NHR
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Benchmark 8 Support NHRIs to Integr
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Benchmark 9 Facilitate IDPs’ Part
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The process of participation is gen
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Georgia represents an especially in
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about the national policy. 16 Sudan
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and reinforce durable solutions. 27
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was 12 million, or 62 percent of th
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displacement. 52 In the run-up to t
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vote is by no means consistent (for
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Benchmark 10 Establish the Conditio
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Kenya National Response to Internal
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Afghanistan Internal Displacement i
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Sri Lanka Gaps in the Government Re
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Domestic Financing Foreign financin
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This study seeks to shed light on h
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CHAPTER 3 Translating National Resp
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For each country case study, the ex
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5 6 Ensure a Legal Framework for Up
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9 9 a) Facilitate IDPs’ Participa
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12 Cooperate with International Com
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From Responsibility to Response: Assessing National - Brookings

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