Justice for the Displaced

Displaced people often find themselves in fragile settings meaning access to justice can be problematic. More research into how they currently access justice is needed so that policies and guidelines can be established to protect those who are currently falling through the gaps.

Internal displacement has been recognised as an issue of global concern since the early 1990s, but despite many efforts, momentum to address this challenge has been insufficient. Meanwhile, the number of displaced people continues to rise.

Political turbulence in many regions of the world has increased the number of displaced people fleeing emergencies and disasters. These displaced people may include people displaced within their own countries, as well as refugees who cross international borders. In both circumstances, these people often end up in large camps where health measures, education and justice mechanisms are insufficient. According to the UN High Commissioner for Refugees (UNHCR), today there are 70.8 million forcibly displaced individuals worldwide who have fled their homes due to persecution, conflict, violence, or human rights violations. This figure includes 41.3 million internally displaced people (IDPs), 25.9 million refugees and 3.5 million asylum seekers.

Explaining the gravity of the situation, UN High Commissioner for Refugees, Filippo Grandi outlined the plight of displaced communities noting; “The internally displaced often face great uncertainty. They can be uprooted more than once as they seek opportunities to restart their lives, and risk being marginalised in the societies where they live. The consequences of our failure to resolve internal displacement can be devastating.”

Displaced people and refugees often find themselves in fragile and conflict-affected settings, meaning that access to justice can be problematic. Yet despite inadequate infrastructure, many displaced people have multiple and complex justice and security needs. For example, the loss of protective family and community structures place IDPs and refugees at an increased risk of violence, exploitation, and abuse, just as their access to justice is curtailed.

Whilst the state holds primary responsibility for ensuring full and equal access to justice, displaced communities often suffer from an uncertain legal status or in some cases, the state shows unwillingness to meet its obligations.

One of the main reasons for this gap in the system is a significant lack of research or evidence in how IDPs and refugees seek and get justice. As such, many states are struggling to provide a justice strategy to help. For example, most research related to justice for refugees and IDPs pertains to camp settings, meaning policymakers, nongovernmental organisations (NGOs), and researchers tend to overlook the justice experiences of the displaced in other situations, particularly when they remain in their country of origin.

Gaining a better understanding of them and the ways in which justice issues faced by displaced people are, or are not, addressed can provide insight into the challenges, experiences and abuses displaced populations face day to day.

For instance, circumstantial evidence shows that refugees tend to receive more attention than IDPs, both in academic circles and regarding international interventions that provide justice provisions. This could be related to the fact that they are often easier to identify, or because of the specific obligations of countries that have signed the UN Refugee Convention to protect refugees in their territories creating a mandate to protect these citizens. This is critical, as although justice needs, strategies, and mechanisms may be similar between refugees and the internally displaced, there is an important difference in their legal status.

For instance, the international community are obligated to concern themselves with the civil and political life of an asylum-seeker who is living outside of their own country yet has no regard for their civil and political life after refugee status has been acquired. For example, according to article 16 of the 1951 Convention Relating to the Status of Refugees, a refugee should have free access to the courts of law and the same rights as a national within the territory, including the right to legal assistance. Yet no specific obligation to secure these rights is specified and reality often shows a gap between this theoretical entitlement and refugees taking up this right in practice. This is partly due to cracks in the legislation that allow the state to choose not to process a case. For example, the 1951 Refugee Convention deliberately excludes all mention of civil and political rights once a person has attained refugee status, instead, a person with refugee status is specifically given economic, social and cultural rights such as housing, education and access to work. This leaves them only partially protected.

IDPs are also left unprotected. Because they do not cross international borders when they flee, legally, they should be seen and treated as regular citizens by the state. However, those who are internally displaced often become lost in a country with little remaining infrastructure, let alone a justice system. Whilst there are guidelines in place to protect IDPs’ rights, they do not always work.

For example, the 2001 United Nations Guiding Principles on Internal Displacement - developed to guide governments, international organisations, and other actors in the field in their interventions to assist and protect IDPs – helps to identify rights and guarantees relevant protection of IPDs in all phases of displacement. It also offers a basis for protection and assistance during displacement, and set out guarantees for safe return, resettlement and reintegration. Yet often none of this is acted upon. Indeed, during a meeting in Geneva on 17 April 2019, a three year Plan of Action for Advancing Prevention, Protection and Solutions for Internally Displaced People (2018-2020) was launched as part of the 20th anniversary of the Guiding Principles on Internal Displacement – widely accepted as being the global standard for protecting and assisting internally displaced people (IDPs) yet many IDPs are still falling through the cracks, unable to find support when they need justice solutions.

The wider issue with such low levels of protection for displaced people is that without basic infrastructure such as a functioning justice models, a vacuum is created leaving significant sections of society without a voice. Once the immediate emergency has passed, this situation forms an inadequate basis for building post-conflict societies or pursuing transitional justice strategies. Indeed, the demographic profile of many refugee and IDP cohorts show a majority of women, children, elderly and people with disabilities. These groups are traditionally excluded from public decision-making, which adds a further human rights dimension to the area of justice within DP communities.

For example, one study set out to test the boundaries of democratic inclusion, exploring the difficult case of female refugees located outside transitional justice processes, and what can be done to better address their needs. Here, the researcher asked whether IDPs have a right to be consulted about peace agreements in their country of origin, yet very little framework existed to ensure the inclusion of displaced populations in these types of decisions. However, many IDPs wish to be actively involved in processes that improve the conditions in their countries.

The key challenge in establishing this participation seems to be that similar to refugees seeking to participate in elections in the home country. To vote, the refugee needs to forego their anonymity in order to register and in doing so, they expose the fact that they have sought refuge elsewhere. This makes refugees sometimes reluctant to engage as a lack of transitional justice can be at the heart of the reason they fear returning to their homes.

To improve existing programmes that facilitate and support justice for IDPs and refugees, more research needs to be done on how these communities are currently accessing justice mechanisms. Are they simply falling through the gaps and barred from their human rights in this way? Or are there examples of justice frameworks that are currently working in some jurisdictions that could be replicated elsewhere? This detail is needed to inform future programmes and ensure that these populations are supported during what is often a highly traumatising experience, even in the best of circumstances. At the moment, very little attention is paid to the justice needs of the displaced and if we are to live in a world where no one is left behind, ensuring this basic human right is in place, is crucial.