From Responsibility to Response: Assessing National - Brookings

CHAPTER 1 Assessing National Approaches to Internal Displacement: Findings from 15 Countries
incorporate the Guiding Principles into its legal system
and to develop “a legislative framework, a strategy and a
plan of action for the implementation of the obligations
stemming from those Principles.” Kälin and other UN
experts reiterated that recommendation in their reports
on the situation in the DRC in 2009 and 2010. There
is no national legislation specifically addressing internal
displacement and the rights of internally displaced
persons in Yemen. 34 No data are available to support
an analysis of the adequacy of existing laws in Yemen
to address issues arising in internal displacement or to
protect the rights of IDPs.
In addition to considering legislation specific to internal
displacement and regardless of whether any
such legislation has been adopted, it is important
to examine how general national legislation that is
not specific to displacement can impact the rights
of IDPs. Such legislation ranges from constitutions
to presidential decrees, electoral laws, laws on education
and criminal codes. For example, in Georgia
the above-mentioned study of the compatibility of
national legislation with the Guiding Principles was
required to consider not only the Law on Forcibly
Displaced Persons–Persecuted Persons but also the
Constitution and more than 200 normative acts adopted
between 1992 and 2002 that had provisions relevant
to IDPs’ enjoyment of their rights. Any update
of this study would also need to consider all subsequent
relevant legislation. Similar “legal audits” of national
legislation undertaken in 2010 in Afghanistan
and the Central African Republic likewise needed to
examine a wide range of legislative acts; in the case
of the Central African Republic, for example, the list
included the Nationality Code, the Family Code, the
Penal Code, the Electoral Code, the Environment
Code, the Forestry Code, the Mining Code, and the
Petroleum Code. 35
34 IDMC, “Internal Displacement: Global Overview of
Trends and Developments in 2009,” May 2010, p. 24 (www.
internal-displacement.org).
35 Erin D. Mooney, Examen du cadre legislatif en République
Centrafricaine relatif à la protection des personnes déplacées
à l’intérieur de leur propre pays: Audit Juridique
70
Conducting such an extensive legal review for all fifteen
countries was not possible within the scope of this study.
Nonetheless, some preliminary findings warrant a mention.
For example, a cursory review of Turkey’s Criminal
Code did not reveal any provisions—as do exist, for instance,
in the Central African Republic and Colombia—
for the criminalization of forced or arbitrary displacement,
with the potential exception of Article 109.1, which
may guarantee IDPs’ right to the freedom of movement. It
states: “Any person who unlawfully restricts the freedom
of a person by preventing him from traveling or living in a
place is sentenced to imprisonment from one year to five
years.” 36 In Nepal, under the Interim Constitution (2007),
the government has the responsibility “to conduct special
programs to rehabilitate the displaced, to provide relief
for damaged private and public property and to reconstruct
the infrastructures destroyed during the course of
the conflict.” 37 While electoral legislation in Nepal (as in
Georgia) was amended to address discrimination against
IDPs in exercising their voting rights, there have been no
amendments to account for the specific residency and
documentation needs of IDPs. South Sudan’s Land Act
recognizes the right to restitution and compensation for
those forcibly displaced after 1983, guaranteeing that “[a]
person may be entitled to restitution of a right in land if
he or she lost her or his right after an involuntary displacement
as a result of the civil war starting from May
16, 1983,” regardless of whether the person’s land was
taken by an individual or the government. The Land Act
also extends the right of restitution to individuals other
than the primary owner, including family members at the
time of displacement, spouses and legal heirs; however,
(Washington, D.C.: Brookings-Bern Project on Internal
Displacement, February 2011) (www.brookings.edu/
reports/2010/11_car_audit_juridique.aspx); Brookings-
Bern Project on Internal Displacement and the Norwegian
Refugee Council, Realizing National Responsibility for the
Protection of Internally Displaced Persons in Afghanistan: A
Review of Relevant Laws, Policies, and Practices November
2010 (www.brookings.edu/reports/2011/11_afghan_national_responsibility.aspx).
36 International Criminal Court, Criminal Code of the
Republic of Turkey, Legal Tools–Database Record No.
117120, June 2010 (www.legal-tools.org/doc/dbffd5/).
37 Interim Constitution of Nepal 2063 (2007), 3.33(r).