C. Particular threats to returnees and the international law response

D. Vulnerable groups

A. Introduction

This Chapter focuses on the human rights situation of returning refugees (returnees) and internally displaced persons (IDPs) - it thus concerns the human rights of persons who are displaced from their homes, but who are within their own country. After highlighting the particular relevance of international human rights standards to the protection of these categories of people, the Chapter also seeks to identify ways in which UN human rights field operations can respond to their needs.

People who are within their own country and experiencing displacement may spend this period in any number of different situations. Public attention is often drawn the most rapidly to displaced persons living in camps, usually because large concentrations of people are more visible. In fact, displaced persons never actually settle in camps - they may live only in much smaller community or family groups, and may be constantly on the move. They may, for example, be forced to continue their displacement for many months to escape an evolving situation of armed conflict in their country. Refugees who re-enter their country as returnees may continue to live through a long period of "internal displacement" - lasting several years or more - before they are finally able to return to their homes and reintegrate into their communities.

Internally displaced persons sometimes make specific efforts to distance themselves from any formal camp situation, precisely because being identified as an "IDP" can, in some situations, itself place a person at risk. In some countries, IDPs may choose to hide in forests and marshland so as to avoid being forced to live in a camp situation. In addition, the ultimate objective of returnees and IDPs is usually to return to their homes - assuming that it is safe to do so - and the return process itself, while lasting many months, can also expose them to human rights violations.

This Chapter thus addresses the human rights protection needs of returnees and other displaced persons within their own country and while outside of any formal camp situation. The Chapter looks in particular at protection needs during displacement or settlement in a non-camp situation, and during the process of returning home. The protection of the human rights of persons living in camps, be they refugees, returnees or IDPs, raises a series of specific concerns which are addressed in Chapter X - "Monitoring and protecting the human rights of refugees and/or internally displaced persons living in camps".

B. Overview of the human rights situation of returnees and IDPs

1. Definition of terms

a. Refugee

1. The definition of "refugee" is set forth in Article 1 of the Refugee Convention (modified by Article 1 of the Refugee Protocol) as any person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country".

2. The definition of refugee has been expanded -- particularly by the Organisation of African Unity (OAU) Convention on Refugees and the Cartagena Declaration -- to include persons fleeing generalized violence (international war, internal armed conflict, foreign aggression or occupation, severe disruption of public order, or massive violations of human rights) in the whole or part of the country of nationality.

b. Returnee

3. "Returnee" is the term used by the international community to identify a person who was a refugee, but who has recently returned to his/her country of origin. Defining a returnee is thus applicable on a person's prior refugee status.

When a refugee decides to go home, it is usually because the threat or danger that had caused him/her to leave his/her place of habitual abode has significantly diminished or the danger in the place of refuge has become greater than the risk of returning home. Often return may be prompted by the end of a civil war or the replacement of a previous repressive government. The term "returnee" is a descriptive term that acknowledges the fact that returning refugees are in need of certain assistance, and sometimes protection, during an interim period until they have re-integrated their communities. Defining the period of time in which a person can continued to be identified as a returnee is difficult and will be different according to each specific situation.

c. Internally Displaced Persons

4. According to the Guiding Principles on Internal Displacement, internally displaced persons are:

"persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed any internationally recognized State border."

This definition is a broad one, largely because, the term "internally displaced person", like the term "returnee", is a descriptive term and not a legal designation. The definition includes the major causes of displacement - armed conflict, generalized violence, violations of human rights, natural or human-made disasters - but uses the qualifying term "in particular" to emphasise that it does not exclude other causes.

The definition focuses on persons who, if they were to cross an international border, would qualify as refugees, both under the OAU Convention and the Cartagena Declaration and arguably, in many cases, under the narrower definition of the Refugee Convention. The definition also includes, however, some persons who would not qualify as refugees, for example, those displaced by natural or human-made disasters. The argument for including these disasters is based essentially on cases where governments respond to such disasters by discriminating against or neglecting certain groups on political or ethnic grounds or by violating their human rights in other ways.

The definition does not encompass persons who migrate because of economic causes. Persons forced from their homes because of economic injustice and marginalisation tantamount to systematic violation of the economic rights would come under the definition.

IDPs are distinguishable from other persons in movement, and are of concern to the international community, essentially because of the coercion that impels their movement, their subjection to human rights abuse emanating from and as a result of their displacement, and the lack of protection available within their own countries.

2. Problems facing returnees and IDPs

a. Returnees

Returnees - as explained in the above definition - are former refugees who have re-entered their country but who have not yet re-integrated their homes and communities. Normally, re-entering one's country after a period of time spent as a refugee should mark the end of personal suffering and displacement and a return to a normal life. In practice, however, refugees are increasingly returning to situations which are far from safe. Sometimes, they may choose to return because their situation in the country of refuge has become worse than the situation in the country of origin. In other instances, refugees are forced to return home - even though a forced return is a violation of a fundamental right accorded to all refugees, and a violation of international law.

A refugee's "return" might take many months or years. Re-entering a country, a returnee might find it impossible to travel immediately to his or her home region. While waiting for an opportunity to return home returnees need to have access to food, water, shelter, health and education facilities, among others. "Long-term" returnees, living in a community other than their own, can thus face many difficulties, and can find themselves in a situation identical to that of internally displaced persons.

b. Internally displaced persons

Internally displaced persons can be obliged to flee their homes for any number of reasons. They may choose to leave for their own safety, or they may be forced to leave, for example, by a military group. Often the only factor which distinguishes IDPs from refugees in the same region is the fact that the latter group has crossed an international border out of their country. In addition, IDPs, because they have not left the country, may still be suffering from the immediate factors which led to their flight. Sometimes IDPs may have been unable to leave their country, perhaps because the borders are too far, or because armed conflict and mines make the journey too dangerous. Like returnees, IDPs often have very limited access to adequate food, water, and shelter, to health or education facilities, and to employment. They often suffer from violations of their human rights, which initially caused them to flee their homes; they may experience further threats to other rights during the period of displacement; and others during the process of return and re-integration to their home communities.

c. Factors affecting the human rights of returnees and IDPs

Returnees and IDPs are vulnerable to violations of both civil and political and economic, social and cultural rights (see below for a detailed analysis of the different violations and international law responses to which returnees and IDPs may be exposed). There may be many different causes behind each violation or pattern of violations, however, a few fundamental factors can often be identified. Understanding the specific vulnerability of returnees and IDPs, in comparison with other members of a population, helps to clarify their situation - and therefore the response needed from HROs.

Three key areas can be identified:

i. Discrimination based upon membership of a group

Depending upon the background reasons which had originally forced people to flee their homes, returnees and IDPs from particular countries or regions are often the members of an identifiable group - they may all be the members of a religious, linguistic, or ethnic minority group, for example. As such they may be the object of discriminatory practices on the part of the other groups of the population or authorities. They may, for example, find that their freedom of movement is restricted, or that their children are not offered places in local schools. They may also be the victims of attacks, killings, and arbitrary arrests.

ii. Displacement from community of origin

The simple fact of being displaced from one's community - leaving behind property, status, employment, family members, etc - places returnees and IDPs in a vulnerable situation. For example, because of their displacement IDPs and returnees may have difficulty in proving their identities and so claiming the normal rights which accompany a national in his or her own country - such as access to free health care, employmentfreedom of movement, etc. Returnees and IDPs may be discriminated against simply because they come from another region of the country and the local population does not wish, or is unable, to share local resources. In fact, the presence of a large displaced population in a region can place a very heavy burden on available food, housing, jobs and other essentials. Prices typically rise dramatically and the standard of living of local population may fall. Tensions can rapidly appear.

iii. The return and re-integration process

Returnees and IDPs can face a series of difficulties during their return journey home, and in the months following the return. Problems related to travel through war zones, the recovery of occupied or stolen property, compensation, and rehabilitation, tracing of lost family members, can all be fundamental to a returnee or IDPs success in re-establishing a normal life. Vulnerability during this stage of displacement can also require a specific human rights response which is different from that needed by other members of a population in the same region.

3. Legal protection of the human rights of returnees and IDPs

a. International human rights instruments

Like any other person, returnees and IDPs benefit from the protection of the human rights provided for in international human rights law instruments (See Chapter III - Applicable International Human Rights and Humanitarian Law: The framework and Chapter IV -Overview of international human rights and humanitarian law standards). Where returnees or IDPs are in a situation of armed conflict, which is quite often the case, then they are also entitled to the protection of international humanitarian law.

The fact of being a returnee or IDP does not remove or limit any of the human rights to which these categories of a population are entitled. The only distinction which should be made, is a positive one: precisely because returnees and IDPs are in a situation of displacement from their homes they are more vulnerable to abuses of their rights, and may require therefore a more specific form of human rights legal protection than other persons, who have not been displaced.

International human rights law does allow, nevertheless for derogations from a State's obligation to respect certain human rights according to conditions within a country or region. In times of armed conflict, for example, a State can sometimes derogate from its respect of the freedom of movement of a population. There are strict conditions governing the regimes for derogations from human rights responsibilities, and these are explained in Chapter III - Applicable International Human Rights and Humanitarian Law: The framework.

b. Refugee law

Persons who leave their countries as refugees benefit from a body of international law (sometimes known as "refugee law") which aims to compensate in part for the fact that these persons no longer benefit from the legal protection normally offered by their State. The United Nations High Commissioner for Refugees is the UN agency which carries principal responsibility for ensuring that refugees are adequately protected. This body of law is legally binding upon all those States who have ratified the relevant international instruments.

When refugees re-enter their country, as returnees, they are no longer entitled to the full protection afforded by international law to refugees. However, elements of that law, and of the mandate of the UNHCR, focus on achieving "durable solutions" and a return in "safety and dignity". On this basis one can infer that returnees continue to benefit from a form of protection related to their former status as refugees. In practice, for example, the UNHCR will continue to help returnees for a period of time following their return into their country of origin. The basic notion upon which this protection is based is that a refugee does not cease to be a refugee, in practical terms of vulnerability, the moment he or she re-enters the country of origin, but will require a period of time in which to "re-integrate". As mentioned above, it is not possible to define precisely how long a person can continue to be defined as a returnee, and therefore for how long a returnee continues to benefit from this "former refugee status" protection.

c. The Guiding Principles on Internal Displacement

Internally displaced persons, because, by definition, they have not crossed an international border out of their country, never benefit from the protections afforded by international law to refugees or, by extension, to returnees. Concern with the vulnerability of IDPs has led to the formulation of "Guiding Principles on Internal Displacement" (see Chapter X - Monitoring and protecting the human rights of refugees and/or internally displaced persons living in camps, Annex II). The Guiding Principles, as an instrument, is not legally binding upon States, however, many of the rights to which it refers are already defined in other international human rights instruments which are of a legally binding character. In fact, the Guiding Principles were not intended to provide a strict legal framework for the protection of IDPs; rather, they were created so as to draw upon elements of existing international human rights law which are of particular relevance to the protection of IDPs, and to apply those elements to the specific situations and threats experienced by IDPs. The body of Principles are intended, as their name suggests, to provide "guidance" in the application of international human rights instruments to the protection of IDPs.

Can the Guiding Principles be applied to returnees? It is unlikely that "long term" returnees can continue to claim some protection from refugee law indefinitely. In cases where the return process lasts, for example, for several years, with returnees settling in temporary camps while awaiting an opportunity to return, they may lose at some point their returnee status, in spite of the fact that the return has not been completed. At this point they should, ideally, be classified as IDPs, at which point the Guiding Principles will help to apply international human rights law to the specific situation of returnees, often identical to that of IDPs in the same country.

4. Objectives and role of a human rights field operation in protecting the human rights of returnees and IDPs

5. To be compelled for any reason to leave one's home, country, or locality is one of the most traumatic events any individual may endure. The return of refugees and internally displaced persons should ideally involve and reflect a restoration of their rights and their connection to their home and community. The return of refugees and IDPs is also an important step towards the reconciliation of a society and the return of normal life after the troubles which caused the initial displacement.

6. In defining the characteristics of efforts by UN human rights operations, on behalf of returnees and IDPs, it is useful to refer to the objectives of the UNHCR. The organisation's Statute, referring to the return of refugees, uses a number of terms which help to express the overall objectives of its assistance: the return should be conducted in "safety" and in "dignity" and it should be conducted as a part of a "durable solution" so that the returnees will not be forced to flee their homes again in the future.

7. These terms also help to summarize the overall aims of work by a UN human rights field operation; each one implies certain rights which respond to the problems experienced by displaced populations. "Safety" indicates that returnees should be protected from threats to the rights to life and to personal security. A return in "dignity" suggests a need to respect the religious, cultural, ethnic, or other identity of returnees, and also rights related to security of the person. The requirement of a "durable solution" emphasizes that the arrival of a returnee in his or her community does not in itself mean that the return has been successfully completed. It is often extremely important to undertake activities to ensure that the return itself is durable. These activities include efforts to assure that the returnees will be accepted back into their communities, for example, through preparatory work with local government officials, discussions with potential employers, agreements with groups which might oppose the return, and general informational activities in the area.

The work of a United Nations human rights operation should take place within this overall context. A human rights operation might, for example, focus on addressing the original causes of displacement, in protecting the human rights of persons who continue to live in a situation of displacement (whether as returnees or as IDPs), in monitoring and assisting in a return process, or in monitoring and assisting a period of re-integration following a return.

8. The types of efforts that HROs will carry out on behalf of returnees and IDPs will depend on a number of different factors. These factors include:

• the mandate of the human rights operation;
• the current situation of returnees and IDPs in the country;

• the numbers of people who are actually engaged in a process of return and the reasons for the return;
• the conditions under which any return is taking place;
• the human rights situation in the region of return;
• and the work of other organizations in the region.

This Chapter is intended to provide assistance to HROs working to address a variety of different situations.

9. Working towards the respect of the human rights of returnees and IDPs can be a very difficult and complicated task. For example, situations in which one ethnic group has been forced to move by another ethnic group require an understanding of the background of tension and conflict. There may be land disputes dating back for hundreds of years -- themselves based on different interpretations of poorly recorded history. These situations raise very strong feelings. For example, the perpetrators of human rights violations, who have forced people to flee their homes, may feel that they are justified in committing those violations because of earlier abuses they suffered at the hands of members of the displaced population. In addressing current human rights violations, a human rights operation may also need to respond to a need for truth and justice for acts committed in the past.

10. Providing assistance to returnees may require very specific field experience, for example, when returnees are detained in violation of their right to liberty, HROs will need to work with the detaining authorities. In addition, among the returnee community there will usually be people who are particularly vulnerable to human rights violations. Women, children, the elderly, and the disabled, for example, often suffer the most from shortages of food and from long journeys on foot. Human rights operations need to be prepared for the human rights protection needs of vulnerable groups.

11. Trying to prevent further human rights violations and to assist the displaced population in returning home requires a very well planned approach, a very thorough understanding of the situation, and sensitivity to the different groups involved.

C. Particular threats to returnees and the international law response

12. The threats and human rights violations to which returnees and IDPs are at risk can be described in several categories. Many people who are not returnees or IDPs may also become victims of the same human rights violations. These two categories are, however, often particularly vulnerable to human rights violations because of their displacement from a community or because they are clearly identified as belonging to a particular group within the population. In situations of inter-state conflict, for example, many people may suffer from lack of food or water; however, returnees and IDPs will often have the most restricted access to any supplies that are still available within the region.

13. This Section describes some of the principal threats to returnee and IDP populations. It also explains some of the binding international legal provisions that can provide protection from human rights violations. Note that no references are made to the Guiding Principles on Internal Displacement - this instrument is included as an annex to the chapter and should be referred to directly. The Guiding Principles help especially in applying relevant human rights law to the situation of IDPs. The threats to returnees and IDPs are identified here to provide easy reference to HROs. ⁽¹⁾

14. Defining the ongoing situation in the country or region of return is very important in terms of the international law which is applicable and which can be used as the basis for protecting the rights of returnees and IDPs. The United Nations Special Representative for internally displaced persons has defined three common contexts in which the rights of displaced people may be at risk ⁽²⁾: (1) situations of tensions and disturbances (or disasters); (2) internal armed conflict, and (3) international armed conflict. Different legal regimes apply to each of these situations and thus affect the rights of returnees and IDPs. These different contexts and the applicable legal principles are discussed in Chapter III - Applicable International Human Rights and Humanitarian Law: The Framework.

1. Discrimination

15. A very significant problem faced by returnee and IDP populations, following their return to a home country or region, is that of discrimination from the national or local authorities. Many international human rights instruments require States parties to respect and ensure the rights recognized by those conventions without discrimination. Article 26 of the Civil and Political Covenant, for example, provides for equality of treatment and governs the exercise of all rights, whether protected under the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction.

16. Discrimination on the basis of "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" is prohibited. "Other status" has been given a broad interpretation and can be argued to include internally displaced persons.

17. In situations of armed conflict, humanitarian law also prohibits discrimination. For example, Common Article 3 to the four Geneva Conventions provides that in non-international armed conflict, "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria". Similar provisions forbid discrimination in a context of international armed conflict, see, e.g., Fourth Geneva Convention, Article 27.

2. Life and personal security

18. Returnees and IDPs may be at risk from acts of violence. The violence may, for example, involve killings, rapes, torture, beatings, or forced disappearances. These acts might be committed by the local authorities or by other members of the local population. In situations of armed conflict they may be committed by one or more of the forces involved in the conflict.

a. Threats to life

19. In situations of tensions and disturbances, or disasters, as in all other situations, the right to life is a fundamental right of returnees and IDPs. This right is affirmed in Article 6(1) of the Covenant on Civil and Political Rights: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life".

20. Because of the nonderogable right to life, the use of force by law enforcement officials is restricted to that which is both proportional and necessary. Law enforcement officials are only allowed to take a person's life when their own lives, or the life of a third person is threatened, and there is no other way to remove that imminent threat.

21. The Genocide Convention also provides a certain protection for the right to life of returnees and IDPs; in so far as they, as members of a group (national, ethnic, racial or religious), are subjected to killings; serious bodily or mental harm; the intentional imposition of conditions of life calculated to bring about the physical destruction of the group, in whole or in part; measures which are intended to prevent births within the group; or the forced transfer of children from the group to another group.

22. In situations of armed conflict the life and personal security of returnees and IDPs are protected by Common Article 3 of the 1949 Geneva Conventions in so far as the returnees and IDPs are not participating in the conflict. Common Article 3 provides:

Persons taking no active part in the hostilities, including those members of the armed forces that have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any distinction . . ..

23. Common Article 3 goes on to specify a number of acts that are prohibited: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and summary executions.

24. Returnees and IDPs, in so far as they are civilians, are protected by the Geneva Conventions and Additional Protocols. Civilians, including returnees and IDPs, may not be the target of attack. Note, however, that returnees and IDPs might not benefit from this protection if they are present in or near significant military targets.

25. In situations of international armed conflict returnees and IDPs who are in regions controlled by an opposing armed force will often fall into the category of protected persons to whom Article 32 of the Fourth Geneva Convention is applicable and which prohibits the parties to the conflict:

. . . from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person but also to any other measures of brutality applied by civilian or military agents.

26. In situations where returnees and IDPs are not defined as protected persons, they should nonetheless benefit from the minimum protection of Article 75 of Protocol I which prohibits violence to the life, health, or physical or mental well-being or persons, including in particular murder. Article 51 of Protocol I addresses this risk: "The civilian population . . . shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited."

27. This prohibition would include, for example, acts or threats by armed groups intended to prevent IDPs from leaving their camps to return home. Article 51 goes on to state that indiscriminate attacks are prohibited, and describes indiscriminate attacks as "those which are not directed at specific military objectives" and "those which employ a method or means of combat which cannot be directed at a specific military objective or . . . which employ a method or means of combat which cannot be limited . . . and are of a nature to strike military objectives and civilians . . . without discrimination".

b. Forced disappearances

28. Returnees and IDPs can sometimes be at particular risk from forced disappearances. The presence of a person, who is a returnee or IDP, in a specific region may not be registered in any national or local official documents. Returnees and IDPs are often excluded from any established community that would help to ensure their protection from a forced disappearance. For these reasons, and particularly in a situation where the forced disappearance of a returnee leads to the death of the victim, it can be very difficult to prove that a forced disappearance has occurred. IDP children, for example, are particularly vulnerable to a forced disappearance imposed in order to recruit them into an armed force.

29. The Declaration on the Protection of All Persons from Enforced Disappearance ⁽³⁾ describes a forced disappearance, in the 3rd paragraph of its preamble, as a situation in which:

. . . persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials . . . , or by organised groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, thereby placing such persons outside the protection of the law.

30. Article 1 of the Disappearance Declaration describes the act of enforced disappearance as ". . . a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights . . .." The Disappearance Declaration is based on accepted customary law and on case law of the Inter-American Court of Human Rights and the Human Rights Committee established under the Civil and Political Covenant. The Vienna Declaration ⁽⁴⁾ and Programme of Action "reaffirms that it is the duty of all States, under any circumstances, to make investigations where there is reason to believe that a forced disappearance has taken place on a territory under their jurisdiction and . . . to prosecute its perpetrators".

31. The prohibition of forced disappearance has been inferred by the Human Committee from the protections for the right to life in Article 6 of the Covenant on Civil and Political Rights and the protection against torture and ill-treatment in Article 7 of the Covenant.

32. In situations of internal or inter-state armed conflict a prohibition of forced disappearances needs to be inferred from other guarantees that are mentioned in humanitarian law. Specifically, these guarantees are the prohibitions of violence to life and person, outrages upon personal dignity, and the passing of sentences and carrying out of executions without judicial guarantees. Other provisions relating to humane treatment are also useful for this purpose. With regard to internal conflict the relevant provisions are contained in Articles 3, 4, 5, and 6 of Protocol II. For inter-state armed conflicts the relevant provisions are contained in Articles 27 and 32 of the Fourth Geneva Convention, and in Article 75 of Protocol I.

c. Missing and dead persons

33. During the return of large numbers of displaced people -- particularly where the return is forced and/or where there is continuing military conflict -- returnees and IDPs may become separated from their families. In such situations it is often impossible for a family to begin a search for the missing person and to cope with the trauma of not knowing what has happened.

34. International law places a certain obligation on authorities to search for missing persons and to inform relatives of their fate. When returnees and IDPs are killed, the authorities have an obligation to make the bodies available for an adequate autopsy and investigation and eventually to dispose of the remains of the dead in a dignified manner.

35. In situations of tensions and disturbances, national domestic laws governing public health can be used to demand the proper disposal of persons who have been killed.

36. In situations of internal armed conflict, Article 8 of Protocol II requires that authorities search for the dead and dispose of their remains.

37. In situations of inter-state armed conflict, the Fourth Geneva Convention requires parties involved in the conflict to facilitate steps to search for the dead and to protect them from ill-treatment. Section III of Part II of Protocol I provides that families should be informed of the fate of their missing relatives.

38. The International Committee of the Red Cross maintains a Central Tracing Agency which assists with the reunification of families during periods of armed conflict and internal troubles.

d. The use of land mines and like devices

39. Returnees and IDPs are often very vulnerable to the risk of injury or death from land mines. Mines may be used on roads or paths that they have to follow in order to return home. They may also be used in villages and cities, or in cultivated fields in order to render these places useless to the population. Land mines are indiscriminate and can remain active for many years, sometimes claiming victims long after the end of a conflict.

40. The principal international law governing the use of land mines is contained in the Land Mines Protocol, which is annexed to the United Nations Weapons Convention. ⁽⁵⁾

The Land Mines Protocol seeks essentially to protect civilians from the dangers of land mines. The preamble to the Weapons Convention requires that parties to a conflict respect provisions in the Protocol which reinforce customary rules from other relevant humanitarian law instruments, such as the prohibition against indiscriminate attacks and attacks on civilians. There have been further efforts to ban land mines which may soon result in a complete ban on their manufacture, transfer, or use. Even if these efforts are successful, there remain many previously placed mines which kill and injure civilians and military personnel.

e. Other acts of violence and ill-treatment, including torture

41. Returnees and IDPs, in addition to being particularly vulnerable to violations of the rights to life and to forced disappearances may be at risk from other forms of violence.

42. Regardless of the situation in which returnees and IDPs may find themselves, they should always benefit from the minimum protection afforded by Article 5 of the Universal Declaration on Human Rights: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

43. This prohibition is generally accepted as forming a part of international customary law and is reproduced in Article 7 of the Covenant on Civil and Political Rights. The Convention Against Torture ⁽⁶⁾

indicates that an act of torture is a universal crime and establishes rules that define the competence and obligations of States parties in dealing with incidents of torture. Cruel, inhuman or degrading treatment and punishment are also prohibited as acts or omissions which cause suffering not reaching the level of severity necessary for torture or which lack the element of intentionality.

44. In situations where returnees and IDPs are arrested and placed in detention Article 10 of the Covenant on Civil and Political Rights recognizes the right of people that have been deprived of their liberty to "be treated with humanity and respect for the inherent dignity of the human person".

45. Prohibitions of torture and cruel or inhuman treatment or punishment are nonderogable and apply therefore in situations of armed conflict. Humanitarian law provides additional protection through Common Article 3 of the four Geneva Conventions which prohibits: "Violence to life and person, in particular . . . mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment".

46. Article 4 of Protocol I, Article 75 of Protocol II, and Articles 27 and 32 of the Fourth Geneva Convention provide similar protection.

3. Personal liberty

47. Refugees and IDPs who return to their country or region of abode may be at risk from arbitrary detention by authorities on the basis of discrimination or some other factor. For reasons similar to those mentioned above (para. 47) in the section on forced disappearances, returnees and IDPs may not be registered in a particular community and are often particularly vulnerable to arbitrary detention. In addition, efforts may be made by national or local authorities, or by groups within the local population, to confine returnees and IDPs to certain regions or even to a specific camp.

48. Article 9(1) of the Covenant on Civil and Political Rights provides: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law".

49. "Arbitrary arrest or detention" has been interpreted to prohibit arrest and detention which is not in accordance with domestic law or not in accordance with international standards of liberty and security of person. These standards concern, in particular, judicial guarantees defined in Article 9(2) to 9(5) of the Covenant on Civil and Political Rights. They include the right to be informed of the reason for an arrest and of the charges; the right to be brought promptly before a judge; the right to a trial within a reasonable period; and the right to a review of the lawfulness of one's detention.

50. Where returnees and IDPs are held in camps, such as "transit camps", prior to returning to their home community, such detention must be both necessary and reasonable. Defining what is necessary and reasonable will depend on the particular situation in each country. HROs should be aware that the detention of returnees and IDPs in, for example, transit camps within their own country may infringe upon the rights of individuals. Such detention should be kept to an absolute minimum and should be accompanied only be those restrictions which are strictly necessary under the situation.

51. With regard to humanitarian law, Article 5 of Protocol II provides guidelines for the treatment of persons deprived of their liberty for reasons related to internal armed conflict. With regard to situations of inter-state armed conflict the Fourth Geneva Convention allows for the internment of protected civilians if necessary for the security of the detaining authority. Such internment is subject to particular standards of treatment and to a regular review.

4. Social and economic rights

52. Returnees and IDPs, by virtue of the displacement that they have experienced, are very often dependent on assistance from governments or from international organizations for the provision of minimum subsistence needs, including food, water, housing, and health care.

53. Without this assistance, it can become impossible for displaced people effectively to return and reintegrate in their communities. In some situations, governments and others may attempt to restrict the access of returnees and IDPs to subsistence needs precisely in order to prevent an intended return. Problems of distribution can lead to serious tensions and even conflict in a region of return. It is essential that all returnees and IDPs have safe access to minimum subsistence needs.

54. Returnees and IDPs will usually need assistance in the form of material aid when they first reach their home region. Returnees and IDPs will need employment, a minimum standard of living, access to education, a means of participating in the local community decision-making process, etc. As returnees and IDPs recover their self-reliance, they will achieve an essential element in the process of reintegration into a community.

a. Food, water, and housing

55. It should be recalled that the Convention on the Prevention and the Repression of the Crime of Genocide, in its Article II(c) defines genocide to include "Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part". Hence, in extreme cases, the deprivation of food with such a genocidal intent could qualify as genocide.

56. Article 11(1) of the Covenant on Economic, Social and Cultural Rights recognizes "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing . . .." The Committee on Economic, Social and Cultural Rights, interpreting States obligations under the Covenant has declared that States parties have a "minimum core obligation to ensure the satisfaction of each of, at the very least, minimum essential levels of each of the rights". A State party that is unable to fulfil this obligation must "demonstrate that every effort has been made to use all resources at its disposition in an effort to satisfy as a matter of priority those minimum obligations".

57. A further interpretation by the Committee, and one that is of particular importance with regard to returnees and IDPs, is the requirement that a State demonstrate that it has made a maximum effort to use all the resources at its disposal to satisfy these minimum obligations (see Chapter XVI - Monitoring Economic, Social and Cultural Rights) . This effort includes not only resources within the country but also resources made available by the international community. This provision can be interpreted as an obligation upon States to allow the international community to provide assistance in the form of subsistence needs to returnees and IDPs.

58. The Committee on Economic, Social and Cultural Rights has interpreted the right to housing as a "right to live somewhere in security, peace and dignity." In assessing the adequate nature of housing one can consider the availability of services (water, electricity), materials and infrastructure (roads, hospitals, etc.), affordability, habitability, accessibility (particularly to the disabled, to children, or to the elderly), location, and cultural adequacy.

59. In situations of armed conflict, Common Article 3 does not explicitly refer to food, water, or adequate housing but provides for humane treatment of all persons who are not taking an active part in the conflict. Humanitarian law prohibits starvation of civilian populations as a means of combat. It also prohibits the destruction, removal, or rendering useless of objects which are "indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of food stuffs, crops, livestock, drinking water installations and supplies and irrigation works". For internal armed conflicts, the essential provisions are contained in Article 14 of Protocol II. For inter-state conflicts, reference should be made to Article 54 of Protocol I.

60. In internal conflicts, Article 5(1) of Protocol II provides for the minimum standards of treatment of people detained during armed conflict, including notably the provision of drinking water, food, and protection from the weather and conflict. These rights are not, however, repeated in Article 5(3) which provides for the treatment of people whose liberty is restricted in any manner other than by detention. Hence, unless returnees and IDPs are detained, Article 5 may not assure the provision of water, food, etc.

61. In inter-state conflicts, Article 55 of the Fourth Geneva Convention requires that the occupying power ensures that food supplies reach the population. The article also prohibits the occupier from requisitioning food without taking into account the needs of the civilian population.

b. Health services

62. Returnees and IDPs are often at risk from sickness and/or injury. Certain groups of returnees and IDPs -- women, children, the elderly, and the disabled -- are particularly vulnerable.

63. Article 12 of the Covenant on Economic, Social and Cultural Rights sets as an objective "the right of everyone to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health." The second paragraph of this article requires States to take measures to attain this objective and requires notably "(d) the creation of conditions which assure to all medical service and medical attention in case of sickness."

64. Under both human rights and humanitarian law returnees and IDPs should not suffer discrimination in regard to their access to medical supplies and facilities. In situations of internal armed conflict, Common Article 3 requires the humane treatment of all persons not actively participating in the conflict. The same article also requires the parties to a conflict to collect and care for the wounded without conditions. This protection should be made available to returnees and IDPs. Article 7 of Protocol II states that in the provision of medical care no distinction is allowed on any grounds other than medical considerations. No distinction should therefore be made against returnees and IDPs. In situations where it becomes necessary to move members of the civilian population, Article 17(1) of Protocol II requires the taking of "all possible measures . . . in order that the civilian population may be received under satisfactory conditions of hygiene, health, safety and nutrition".

65. In situations of inter-state armed conflict, Article 55 of the Fourth Geneva Convention requires that the occupying power ensure medical supplies to the population. Article 6 imposes a duty on the occupying power to ensure and maintain medical and hospital facilities and services. In Articles 16, 17, 18, 19, 21, and 22 of the Fourth Geneva Convention provision is made for the sick and injured, for expectant mothers, for the protection of medical facilities, and for the evacuation of the sick and wounded.

c. Access to property

66. Returnees and IDPs may lose possession of their property during displacement. It is important for the successful reintegration of returnees and IDPs that they are able to reclaim ownership and possession of belongings, cars, offices, and land. The restitution of houses occupied by other individuals is often a problem faced by displaced people who return home. It is also important that returnees and IDPs be allowed to maintain possession, or to reclaim, any money that they own.

67. Article 1 of the First Protocol of the European Convention on Human Rights provides that every person should have the right to "the peaceful enjoyment of his possessions". Article 1 prohibits the deprivation of such possessions "except in the public interest and subject to the conditions provided for by law and by the general principles of international law". Similar provisions exist in Article 14 of the African Charter on Human and People's Rights, and in Article 21 of the American Convention.

68. In situations of internal armed conflict, Article 4 of Protocol II prohibits "pillage", and thus provides a certain protection for the personal property of returnees and IDPs in displaced persons camps or in homes. Article 14 of Protocol II prohibits the "attack, destruction, removal, or rendering useless of those objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works".

69. In situations of inter-state armed conflict, the Hague Regulations Respecting the Laws and Customs of War on Land of 1907 provide a certain protection to property. Article 25 prohibits the "attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended". Articles 28 and 47 prohibit the pillage of a town or place during hostilities or occupation.

70. Article 53 of the Fourth Geneva Convention prohibits any destruction of real or personal property by an occupying power. Article 97 provides that sums of money, and other items of value, can only be taken away from civilian internees in exchange for a receipt. Objects with a personal or sentimental value cannot be taken away.

d. Employment

71. Article 23 of the Universal declaration provides:

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any distinction, has the right to equal pay for equal work.

e. Right to education

72. Returnees and IDPs may find themselves excluded from education opportunities when they return home. There may be insufficient places available, the fees may be too expensive, or there may be discrimination against the returnees and IDPs in the attribution of places in educational institutions. Education is extremely important to returnees and IDPs and fulfils a principal role in the process of reintegrating into a community. Education is particularly important for returnee children who will often have missed several years of formal and structured schooling.

73. Article 13 of the Covenant on Economic, Social and Cultural Rights recognizes the right to education for everyone -- particularly compulsory and free primary education. The UNESCO Convention against Discrimination in Education also prohibits discrimination at all levels of education.

5. Restrictions on movement

74. Freedom of movement is an extremely important right for returnees and IDPs. It is also a right that is frequently denied to them. For example, returnees and IDPs leaving a country or region in which they have been seeking refuge will often need to travel long distances in order to reach their home region. National or local authorities may try to force the returnees and IDPs to use a particular route of return. Sometimes these specified routes may be longer or more dangerous than other alternatives, and the restriction of movement has the effect of preventing or discouraging displaced persons from making the return journey. Returnees and IDPs are sometimes forced to settle in one particular area, for example, in a region where the soil is not suitable for farming, where there are few water sources, or where mines have made the area very dangerous.

75. Returnees and IDPs have already suffered a violation of their right to freedom of movement when they were forced to flee as refugees or as IDPs. It is therefore all the more important that as displaced people return this right should be respected. Accordingly, it is essential that returnees and IDPs be guaranteed the right to freedom of movement. Any restrictions imposed on movement by local authorities under Article 12 of the Covenant on Civil and Political Rights should be critically examined, and where possible, avoided.

a. Moving within one's own country

76. The principal contexts in which a returnee's right to freedom of movement might be violated are: when moving within his/her own country; when choosing a residence; and as a result of decisions to displace, relocate, or transfer groups of returnees and IDPs.

77. The Universal Declaration recognizes, in Article 13(1), the freedom of residence and movement as a basic human right. Article 12(1) of the Covenant on Civil and Political Rights provides: "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."

78. In situations of tensions and disturbances the right to freedom of movement is derogable and subject to various possible limitations. Article 12(3) of the Covenant on Civil and Political Rights provides that the only restrictions permitted are those "which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present covenant." The American Convention adds "public interest" to the possible justifications for restrictions of freedom of movement. In all cases any restrictions should be proportional to the necessity.

79. A situation of internal armed conflict may provide justification for a restriction of freedom of movement. Article 17 of Protocol II, however, prohibits the forced movement of civilians, except under special circumstances:

(1) 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. Should such displacements have to be carried out all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

80. In situations of inter-state armed conflict Article 49 of the Fourth Geneva Convention provides for the freedom of movement of displaced persons: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of the motive."

81. Article 49 continues,

Nevertheless, the occupying power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons do demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.

82. Article 85(4)(a) of Protocol I characterizes the intentional "transfer by the Occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory in violation of Article 49 of the Fourth Convention" as a grave breach of the protocol.

83. As referred to above, the term "protected persons" can be interpreted to cover returnees and IDPs. In some situations returnees and IDPs, as members of a civilian population, may be forced to leave their residences so as to shield military objectives from attack. This form of forced displacement is prohibited by Article 51(7) of Protocol I.

b. Leaving one's own country and seeking asylum

84. Sometimes refugees and displaced people who return to their home country or region decide to leave again. The decision to leave may be made, for example, after a change in the security situation, or because there are no longer sufficient opportunities to find employment.

85. Returnees and IDPs, like other members of the population, are entitled to leave their country. Article 12(2) of the Covenant on Civil and Political Rights provides "everyone shall be free to leave any country, including his own." Article 12(3) provides, however, that the right to leave a country is subject to restrictions imposed by law which "are necessary to protect national security, public order (ordre public), public health and morals, or the rights and freedoms of others . . .."

86. Returnees and IDPs also have the right to seek asylum. The Vienna Declaration and Programme of Action provides "that everyone, without distinction of any kind, is entitled to seek and to enjoy in other countries asylum from persecution." Article 14(1) of the Universal Declaration similarly provides: "Everyone has the right to seek and to enjoy in other countries asylum from persecution."

87. Under humanitarian law, Article 73 of Protocol I considers the situation of people who flee their country before the beginning of a war, and are accepted into another country as refugees. If, subsequently, the country of refuge is occupied by the armed forces of the country of origin, the refugees, although nationals of the occupying country, must be treated as protected persons.

6. Requirement of identification documents

88. In many places, nationals of a country may be required to present identification documents. These documents may be necessary, for example, to purchase bus or train tickets, to pass through check points, to reclaim one's own place of residence, or to apply for a job. The documents required may include passports, birth certificates, insurance certificates, or driver's licences. It is often impossible for displaced people to present all or any of these documents. After months or years of displacement, returnees and IDPs may have lost, or had stolen, many of their belongings. Displaced people may have been forced to flee without their documents. Where births or deaths occurred during the period of displacement, returnees and IDPs may have been unable to obtain the relevant certificates. In some refugee or IDP camps registration facilities are provided; however, displaced persons are sometimes unwilling to identify themselves as returnees and IDPs in their community of origin and prefer not to use these documents. Also, identity cards are sometimes only provided to male heads of households, a practice that may place women at risk in crossing borders or checkpoints.

89. The requirement of certain documents which displaced people are unable to obtain may prevent returnees and IDPs from traveling within their country, or from obtaining homes or jobs within a community.

90. International law provides for the right to a legal personality for each person. Article 16 of the Covenant on Civil and Political Rights declares "Everyone shall have the right to recognition everywhere as a person before the law".

91. Refugee law requires that States respect the personal status, such as marriage, of a refugee prior to his or her displacement. It also requires that countries of asylum provide administrative services to refugees including the delivery to these persons of "such documents or certifications as would normally be delivered to aliens by or through their national authorities".

92. In situations of internal armed conflict, no specific references are made to the documentation requirements of displaced people, except as provided in the Civil and Political Covenant. With regard to situations of inter-state armed conflict, Article 80 of the Fourth Geneva Convention provides that the legal personality of civilian internees should be protected. Article 97(6) provides that family or identity documents cannot be taken away from their owners without a receipt being given in exchange. In addition, Article 97 provides that at no moment should civilian internees be without identity papers. These provisions of the Fourth Convention could be used to provide relevant protection for returnees and IDPs.

7. Keeping a family together

93. During a return process, many families may become divided and children, in particular, become lost. In some situations, displaced people returning home may find that local authorities order certain people to specified regions. These orders may lead to the division of families and communities. Some of these problems can be avoided through application of the international law with regard to freedom of movement. There exist, however, a significant number of provisions specific to maintaining the unity of families.

94. The Covenant on Civil and Political Rights provides in Article 23(1) that "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State". There are similar provisions in the Universal Declaration; the Covenant on Economic, Social and Cultural Rights; the African Charter; and the American Convention. The Convention on the Rights of the Child in particular makes detailed provisions on the importance of the family for children.

95. In situations of internal armed conflict, Article 4(3)(b) of Protocol II provides that all appropriate steps shall be taken to facilitate the reunion of families temporarily separated.

96. With regard to inter-state armed conflict, Article 74 of Protocol I requires each party to the conflict to "facilitate in every possible way the reunion of families dispersed as a result of armed conflicts." This article applies to the whole population, including the nationals of the party to the conflict. Article 49 of the Fourth Geneva Convention requires that, where an occupying Power evacuates members of the population, the Occupying Power should ensure to the greatest possible extent that members of the same family are not separated.

8. Language and culture

97. Returnees and IDPs, living in a region other than their own, or following their return home, may be prevented from using their own language and pressured to use the language of the local or national authorities and/or of a larger linguistic group in the region.

98. Linguistic rights are explicitly protected by a number of treaties. The right to speak one's own language is also inferred from a number of other rights, such as the right to freedom of expression.

99. Article 27 of the Covenant on Civil and Political Rights provides, "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied their right, in community with the other members of their group, to . . . use their own language."

100. In situations of internal armed conflict, Common Article 3 requires the humane treatment of all persons who do not or who no longer participate in hostilities. Such treatment must be accorded "without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria". Language is arguably covered by "similar criteria". An analogous provision is found in Article 75 of Protocol I with regard to situations of inter-state armed conflict.

9. Freedom of assembly

101. In many places, returnees and IDPs will not be well represented in local or national associations and administrative structures. They may need to form associations and to represent themselves. In some countries, restrictions are placed on the right of certain groups to gather.

102. Article 21 of the Covenant on Civil and Political Rights provides, "the right of peaceful assembly shall be recognized." In addition, Article 22 states, "everyone shall have the right to freedom of association with others . . .." These rights are, however, subject to restrictions provided by law and which are necessary in the interests of national security, public safety, or the rights of others.

10. Participation in governmental and public affairs

103. Returnees and IDPs may find themselves excluded from any opportunity to participate in governmental or public affairs. Such exclusion may, in turn, lead to other violations of their human rights.

104. Article 25 of the Covenant on Civil and Political Rights provides that every citizen shall have the right and the opportunity to participate in the conduct of public affairs and to vote and be elected at genuine periodic elections. Returning citizens should be assured their rights of political participation.

105. A 1991 United Nations General Assembly resolution declares "the right of everyone to participate in the government of his or her country is a crucial factor in the effective enjoyment by all of a wide range of other human rights and freedoms . . .."

106. Restrictions on the right to participate in public affairs are permitted but they must not be unreasonable and they must be proportional (Article 25 of the Covenant on Civil and Political Rights). Although international law assures only citizens the right to vote and be elected, Governments have and should consider extending participatory rights to others residing in the community.

D. Vulnerable groups

107. Returnees and IDPs are often a vulnerable group deserving particular attention from the human field rights operation. There are, however, particularly vulnerable categories of people within returnee populations. There may, for example, be particular groups of returnees and IDPs that will be the targets of human rights violations because of their opinions, religious beliefs, ethnic identity, or other reason.

108. Specific attention should be drawn to women, children, the elderly, and disabled persons. These categories of returnees and IDPs are often at the most risk of violations of their human rights or other suffering during the return process. For example, returnees and IDPs are often obliged to walk for many days in order to return to their home country or region, carrying all of their belongings with them. These journeys may take place under harsh weather conditions, with extreme heat of cold, and with little food or water. These conditions create the most difficulties for children, the elderly, and disabled, as well as for the women returnees and IDPs who care for them.

109. This part gives an indication of some of the problems that vulnerable groups of returnees and IDPs may face, and provides brief information on some of the international legal norms that can be used to protect each category. The information provided here is by no means exhaustive. In particular, attention is drawn to the fact that only those rights which correspond to violations frequently suffered by vulnerable group as returnees and IDPs are mentioned. HROs should be aware of the vulnerable categories within the returnee populations in their region. The human rights field operation's returnee unit should provide clear guidance to staff members as to what assistance they may offer to particularly vulnerable returnees and IDPs. See below Section H below for more information.

1. Women

110. Women usually form the largest single category of displaced people. Returnee women are often left to look after their children entirely on their own and will sometimes take on the additional responsibility of caring for unaccompanied children. In spite of this heavy burden women are often left out of any decision-making process within the returnee community. The decision to return, for example, may have been made by men, and without consideration for the sometimes different priorities of women and children. During the period of displacement women may be particularly vulnerable to physical violence, and rape in particular. The victims of such violence are sometimes stigmatized by their families and other returnees and IDPs and may be unable to return to their community.

111. The problem of exclusion from decision-making structures, and other forms of discrimination, often continues following the return. In many countries, for example, women heads of households may be prevented by local tradition, or even national law, from owning land or property. Women may be excluded from control over the distribution of food or other aid that is essential to their reintegration into the community.

112. There is increasing awareness within international humanitarian organizations of returnee women's needs and of the importance of involving returnee women in the development and local management of aid programmes.

113. Discrimination based on gender is the cause of many human rights violations that are suffered by women returnees and IDPs. The UN Charter and human rights treaties forbid sexual discrimination and provide for the right to gender equality, for example, in Article 2 of the Universal Declaration and Articles 2(1), 3, and 26 of the Covenant on Civil and Political Rights.

114. Returnee women may be the victims of "gender specific violence" such as rape. These violent acts are committed sometimes by members of armed groups in the territory through which returnees and IDPs must travel to reach their home region. In some cases the violent acts may be committed by men within the returnee population. While many women are vulnerable to gender specific violence, however, returnee women -- who are often separated from their families and other members of the community -- are particularly vulnerable.

115. The human rights violations inherent in gender specific violence are prohibited by many principles of international law on other acts of violence and ill-treatment, including torture. Specifically, the United Nations Declaration on the Elimination of Violence Against Women affirms that States have an obligation to prevent and redress such violence. States should understand their obligations under these international instruments as imposing an affirmative duty to respect and ensure protection from violence as well as to prevent and punish acts committed by private individuals.

116. Returnee women may be coerced into prostitution in exchange, e.g., for food, safety, or the right to enter or leave a country or region. The victims of these violations may suffer physical and/or mental pain and, in addition, may risk catching the HIV/AIDS virus. In situations of internal armed conflict, Article 4(2)(e) of Protocol II prohibits "rape, enforced prostitution and any form of indecent assault". Similar provisions exist in Article 76(1) of Protocol I with regard to situations of inter-state armed conflict.

117. In many situations returnee women do not have equal access, with men, to personal identification documents and to registration procedures. The absence of personal documentation may make it impossible, for example, for women to travel or have access to food or property without the agreement of a husband or other male relative. The UNHCR in particular concentrates on ensuring that women are able to acquire an independent legal status.

118. Article 11 of the Women's Convention guarantees women equal rights with men in employment. These equal rights include the same employment opportunities, equal remuneration, and equal treatment in respect of work of equal value.

119. Article 15 of the Women's Convention provides that women are equal with men before the law, and that they, in particular, shall be accorded "equal rights to conclude contracts and to administer property . . .." Article 16(1)(h) of the Convention emphasizes the equal rights of husband and wife in owning, acquiring, managing, administering, enjoying, and disposing of property. Returnee and IDP women often face problems with regard to the inheritance of property. During displacement, especially in an environment of armed conflict, many people may die. Where a woman loses her husband, she may later, upon her return home, be unable to inherit the family property which was registered in his name.

2. Children

120. Within returnee populations there are often large numbers of unaccompanied minors. These children may have become separated from their parents when they first left their homes, or during the return. In many cases their parents may have been killed. During the return unaccompanied minors often have very limited access to food aid. Exhaustion and malnutrition, combined with their young age, can make children (unaccompanied or otherwise) particularly vulnerable to illnesses such as cholera and malaria. In many countries young boys are the victims of conscription by armed groups and obliged to take part in hostilities; unaccompanied children are particularly vulnerable to this violation of their rights.

121. Those children that succeed in returning to their home regions may have no homes to locate; they have often missed several years of education, drastically reducing their employment opportunities for the future.

122. Returnee children may be confined to camps, or other places, by local authorities. Article 37(c) of the Convention on the Rights of the Child provides: "Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age".

123. Children are guaranteed a particular right to family unity which is especially relevant to returnee children. Article 7 of the Convention of the Rights of the Child provides that a child, as far as possible, has the right to know and be cared for by his or her parents. Article 5 provides that the States parties to the Convention are required to respect

the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

124. Article 9 of the Convention refers to situations where a child is separated from his or her parents. The article provides that

where such separation results from any action initiated by a State party, such as the detention, imprisonment, exile, deportation or death of one or both of the parents, or of the child, the State party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well being of the child.

125. The Convention refers to conditions of family reunification. Article 10 provides that children and parents have the right to leave any country, including their own, and to enter their own country for purposes of maintaining contact with each other. With regard to refugee children (or children seeking refugee status), Article 22 stipulates that States parties

shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.

126. Article 27 of the Convention on the Rights of the Child provides that every child has the right "to a standard of living adequate for the child's physical, mental, spiritual, moral and social development". States parties "in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing".

3. The elderly and disabled

127. In many societies the elderly and disabled receive care from their families. In situations where populations are displaced, however, families become easily separated; the elderly and disabled may find themselves left on their own. As with unaccompanied children, this category of returnees and IDPs often has limited access to food and other aid. The traveling involved in the return process may be very exhausting for them. Physically disabled people, in particular, may be unable to walk long distances, if any distance at all. The elderly are especially vulnerable to illness, and disabled people may be particularly at risk from discrimination and/or degrading treatment based on their disability.

128. HROs should be aware of the vulnerability of the elderly because of their old age and isolation from the normal protection mechanisms within the community. The United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities ⁽⁷⁾

provide that persons with disabilities are entitled to enjoy to the maximum extent feasible the same rights and freedoms as those who are not affected by disabilities. The Standard Rules provide that "the term 'disability' summarizes a great number of different functional limitations occurring in any population in any country of the world. People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature".

129. Article 2 of the Covenant on Economic, Social and Cultural Rights prohibits disability based discrimination. The Committee on Economic, Social and Cultural Rights has defined such discrimination as including "any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights". ⁽⁸⁾

E. Human rights field operation: preparing for the return

130. The principal objective of returnees and IDPs is to end their situation of displacement and to return to a normal life. As far as possible, most people will wish to return to their home regions, to recover their land, homes, and other property. Aside from the general monitoring and protection of the rights of returnees and IDPs during displacement - referred to above - UN human rights field officers can also play an important role in preparing for the return of these displaced persons. Elements of such "preparation" involve working within the human rights operation, and with key partners to ensure that there is a thorough understanding of the human rights situation confronting returning displaced persons. Other aspects of the "preparation" may involve working to address some of the problems that returnees and IDPs may face during the return process. Such activities might involve, for example, helping the authorities to develop a system of property restitution and compensation in conformity with national and international law, or training local police to mediate in disputes between returnees/IDPs and others.

There are thus any number of activities in which a human rights operation may engage in preparation for a return. Several of these are addressed in other Chapters of this Manual - such as protecting the human rights of detained persons, the administration of justice, etc - while others are addressed in separate UN human rights training texts covering, for example, human rights promotion, human rights and law enforcement, and human rights for lawyers and judges.

Attention is drawn here to a limited list of activities which should, themselves, help a human rights operation to better develop its strategy and approach to providing more substantive assistance to returnees and IDPs. The human rights field operation can prepare for the return of refugees or IDPs in four ways: (a) information-gathering, (b) work in the context of special agreements, (c) consultation, and (d) training/information activities..

1. Information-gathering

131. The first preparatory stage is understanding the situation. Information should be gathered on the returnees and IDPs, on the region where they will return, and on the overall return situation. This information should be used to build a profile of the return situation.

a. Information on the returnees and IDPs

132. Area offices and the field operation's central office returnee unit - when existing - should collect detailed information on the returnees and IDPs who are expected to arrive. Who are they? Are the displaced people identified with one or more groups (political, ethnic, religious, etc.)? Do they form one professional or social group (e.g., farmers)? Are there any vulnerable groups within the returnee population? Are there tensions between the displaced group and any other group, for example, in the home region? What is the history of the relationship between the groups? When did the returnees and IDPs leave their homes and why? In which countries or places did they seek refuge? What were the conditions of life in the place of refuge? What pressures have those conditions placed upon the returnees and IDPs? In particular, to what extent is the return voluntary? When is the return expected to take place? Over what period of time? How many people are expected and to what areas will they return?

133. This information should be gathered either through contact with returnees and IDPs that have already arrived, or through contact with displaced people in refugee or IDP camps (see Chapter IX- "Visits to Internally Displaced Persons and/or Refugees in Camps"). They should be asked for their opinions on the return. What are their hopes for the return? What are their fears? Attention should be drawn to issues such as personal security, relations with the local authorities, housing, and employment. It is essential that any such survey be conducted among women returnees and IDPs as well as men. Women may have very different priorities and, as a vulnerable group, their rights may be at greater risk.

b. Information on the region of return

134. Area offices in the region where the returnees and IDPs are going should inquire as to the housing and employment situation that is likely to face returnees and IDPs. HROs can make contact with members of the local population in order to discover how they feel about the arrival of the returnees and IDPs. What do they hope and fear from the return? How will those people who are living in the community receive the returnees and IDPs? Are there groups who will oppose the return or who may seek to violate the human rights of the returnees and IDPs? What are the principal problems that could arise if the displaced people were to return now? What would be the conditions, from a human rights perspective, with which they would be met? For example, would there be a shortage of housing, which in turn may lead to disputes over home ownership and subsequent human rights abuses? Would there be arrests of the returnees and IDPs for their alleged conduct prior to departure? By predicting these sorts of problems HROs can do much to prepare for them, for example, by raising such issues with local authorities.

c. Building a profile

135. With the above information the human rights field operation can build a profile of the returnees and IDPs and the situation of return. The profile will help to facilitate planning and to emphasize potential problems so that they can be addressed as soon as possible. Profiles should be updated regularly and, where necessary, can be specific to particular regions of return covered by the operation.

2. Working within special agreements

136. The field operation should ensure that it is informed of the content of any special agreements that may have been signed by the national or local authorities with regard to the returnees and IDPs. Such agreements can help to reinforce the protection of returnee rights by providing specific guarantees on the part of the national or local authorities of the way in which they will treat returnees and IDPs. The UNHCR in particular maintains the practice of signing "Branch Office Agreements" between the UNHCR and the national authorities. On occasion, the UNHCR will also participate in "Tri-partite Agreements" with the host country and the country of origin. It may be important for the human rights field operation to ensure that its work respects and enters within the context of such agreements.

3. Consultation with the Government, UNHCR, and others

137. It is extremely important that, at both the national and local levels, the human rights field operation discuss potential problems with the Government, the UNHCR, other international organizations, nongovernmental organizations, and other groups that will be involved in an eventual return of displaced people. Indeed, the UN human rights field operation should consider developing an agreement between the various interested institutions in which responsibilities are shared. Several such agreements on various aspects of the return problem were developed by the UN Human Rights Field Operation in Rwanda and the UNHCR. The basic agreement is found in Appendix 1 and might serve as a model in this regard.

138. Area offices should inform the local authorities and other organizations of the field operation's mandate with regard to displaced people. They should also consult the local authorities and other groups as to plans for the return. It is essential that the authorities be involved in making decisions about the return of the displaced people.

139. Area offices may also wish to raise potential problems -- such as housing, the availability of gainful employment, and the impartiality of the judicial system -- with the relevant authorities. It is far better to raise sensitive issues before they need to be handled. Such consultations should involve an exchange of information. The focus of the human rights field operation's efforts should be on assisting the authorities in their task as well as monitoring the way in which they accomplish it.

4. Other preparation activities for the return

140. As part of the preparation for the arrival of returnees and IDPs the human rights field operation may carry out a number of different activities, according to the mandate of the particular operation.

141. These activities can address specific issues, such as human rights training for local security forces, or they can address broader issues such as tensions between the returnee group and the local population. For example, area officers may notice that local police tend to beat crowds of returnees and IDPs during food distribution, or there may be hostility on the part of the local population towards the returnees and IDPs as they arrive home. Human rights training and information activities can be organized to address these problems. Police officers might be trained in human rights principles and techniques for controlling civilian crowds. Meetings and discussions can be held with the local population to alert them to the needs of the returnees and IDPs; other efforts can be used to inform the local population of the rights of groups (such as ethnic, religious, or political minorities).

142. It is important that members of the target groups be involved closely in the development of any training or other information programme.

F. Human rights field operation: activities during the return of displaced persons

This section looks at the possible role of a UN human rights field operation during the actual return voyage of returnees and IDPs to their home regions and communities. A process of "return" can take place in many different ways and under varying conditions, both of which will be determinant in defining the respect of human rights. The role of HROs will have to be defined in function with these ways and conditions and, as mentioned in the introduction to this chapter, in function with the mandate and resources of the operation and the role of other organisations.

1. The right to return, "non-refoulement", and voluntary return

Refugees have the legal right to return to their country when they wish to do so. They also benefit from legal protection preventing States from forcing them to return. Aside from the respect or violation of these legal provisions, whether or not a return is voluntary can have an important impact on the way the returnees and IDPs are received. People who are forced to go back to their countries may have to do so when the security situation is unstable, or when there is insufficient food for them in their home region. These factors increase the risk of loss of life, of injury, or of sickness among the returnees and IDPs. The nature of the particular risks faced by returnees and IDPs will inevitably affect the focus of efforts made by the human rights operation to provide assistance.

a. The "right to return" in international human rights law

143. Article 13(2) of the Universal Declaration of Human Rights, Article 12(4) of the International Covenant on Civil and Political Rights, the Fourth Protocol to the European Convention on Human Rights, Article 22(5) of the American Convention on Human Rights, and Article 12(2) of the African Charter on Human and Peoples' Rights recognize the right of an individual to return to her/his home country. For example, Article 12(4) of the International Covenant on Civil and Political Rights provides, "No one shall be arbitrarily deprived of the right to enter his own country."

144. Similarly, Article 13(1) of the Universal Declaration of Human Rights, Article 12(1) of the International Covenant on Civil and Political Rights, the Fourth Protocol to the European Convention on Human Rights (Article 2(1)), Article 22(1) of the American Convention on Human Rights, and Article 12(1) of the African Charter on Human and Peoples' Rights guarantee freedom of movement within a state, which would include the right of internally displaced persons to return to their home. For example, Article 12(1) of the International Covenant on Civil and Political Rights provides, "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."

b. "Non-refoulement" and "voluntary return"

145. A fundamental precept of international refugee law is that of non-refoulement. Article 33 (1) of the 1951 Convention Relating to the Status of Refugees ⁽⁹⁾ provides:

No Contracting state shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

146. This provision establishes the principle of voluntary repatriation. As a direct consequence of this provision, refugees will normally only return to their countries when they wish to do so. In order for a refugee to make an entirely voluntary decision about return, s/he must be provided with accurate and up-to-date information on the situation in their country and home region. This information allows the refugees to make an informed decision. Other factors, such as assistance with transport and resettling, are also important in the decision-making process and the UNHCR, in particular, will often facilitate voluntary repatriation by offering various forms of assistance.

147. The Convention and Protocol relating to the Status of Refugees do not apply to IDPs. The right to freedom of movement, however, applies to every person within his or her own country and means that IDPs should have the same choice voluntarily to return home (see paras. 20-21 and Article 12 of the Covenant on Civil and Political Rights).

148. In most situations displaced persons and refugees, who have accurate information, are the themselves the persons best placed to decide whether it would be safe and appropriate to return home. Knowing whether a return is voluntary will provide HROs with important information on the threats that may confront returnees and IDPs.

2. Types of return

149. In spite of the international legal guarantees of voluntary return and freedom of movement within a country, the principle of voluntary repatriation is not always fully respected. On some occasions, despite the efforts of the UNHCR, countries of asylum may violate the norm of "non-refoulement", compelling refugees on their territory to return home. Sometimes groups of refugees may return home because their place of refuge becomes more dangerous than the risks they face at home.

150. There are a number of different types of return, often related to whether or not a return is voluntary. The extent to which the return is voluntary will usually affect the manner in which the return takes place and, consequently, the activities of a human rights field operation.

151. A voluntary return process should be characterized by the planned and relatively organized nature of the return. There is usually time to prepare adequate transport and other necessary facilities. The numbers and often the names of returnees and IDPs are well documented, making it easier to keep track of individuals and families.

152. Where the principle of voluntary return is not respected, displaced people may be forced to return. Also, there may be situations in which refugees or displaced persons participate in a spontaneous return. Such returns are often very disorderly; they may involve the movement of very large numbers of people. There may be insufficient transport, food supplies, and medical care available. Massive forced returns, in particular, can lead to enormous suffering and even death for many returnees and IDPs, and especially for any vulnerable groups within the returnee community (see Section D - "Vulnerable groups"). The type of return that takes place will influence the role that the human rights operation will fulfil during the return. For example, there are less likely to be human rights abuses during an orderly and voluntary return.

3. Situation in the home country/region within which the return occurs

153. The political situation in the country or region to which people return will also have a very marked effect on the conditions and success of the return. People who return to a region in which an armed conflict is being waged are far less likely to be able to settle durably, and in safety and dignity, than people who return to a peaceful situation and as part of a political settlement, for example.

4. Activities during the return

154. During the return area offices will generally need to monitor the human rights conditions accompanying the movement of the displaced persons.

155. Monitoring activities should include:

a. Presence at the border and other control points:

• To make sure that all of the displaced people are allowed through and that any searches of personal belongings are conducted with respect.
• Returnees and IDPs should be permitted to bring their personal belongings back home without the imposition of customs or other limitations. No fees should be charged to returnees and IDPs for the privilege of crossing borders or other check points.
• Area offices should assure that border authorities do not impose unreasonable or discriminatory health strictures on returnees and IDPs, their belongings, or vehicles.
• Patrols along roads used by returnees and IDPs who are on foot to ensure that there is no threat to the returnees and IDPs from the local population or the security forces.
• Presence at any transit centres on the route.
• Patrols in the towns and villages of origin to monitor how the new arrivals are received.

b. Maintaining constant contacts with authorities

• HROs should by their presence, by contacts with authorities, and by other means seek to discourage such problems as harassment, physical or verbal threats, bodily harm to the returnees and IDPs, or discriminatory arrests.
• They should also monitor problems of dehydration, cold, lack of food, exhaustion, illness, etc., and alert relevant aid agencies and services to help address these problems.

c. Co-ordinating with the potential human rights work of partner organisations

• An essential element of monitoring the return of displaced people will be coordinating the work of the human rights field operation with that of other international organizations participating in the return process.
• In addition, where there are very large numbers of people returning it may be necessary to redeploy HROs within the operation or to recruit additional officers. These issues are addressed below in Section H - "Structure".

G. Human rights field operation: activities after the return

156. Following the return of returnees and IDPs to their communities, HROs can continue to play an important role by monitoring a returnee's reintegration. Returnees and IDPs, in many situations, should be considered as a vulnerable group that should be monitored more closely than other categories of the population. In addition, returnees and IDPs are often outside the scope of the normal protection mechanisms that help to protect a person's rights in the community.

157. A HRO's objective in monitoring returnees and IDPs, following their arrival in their region of abode, is to ensure that the returnee's and IDPs human rights are not violated during this period of transition from returnee/IDP to member of the community. Any problems that are identified through the monitoring can be communicated to the local authorities, to other organizations, or can be otherwise addressed by the human rights area office. Once a returnee or IDP has "reintegrated" in a community he/she is no longer considered to be a part of a high risk group and so is no longer in need of particular monitoring.

158. Monitoring reintegration is, however, difficult to define. What exactly does reintegration mean in this context? How can one determine when a returnee or IDPhas "reintegrated" in a community? How does the HRO monitor reintegration? When does a returnee/IDP stop being a "returnee or IDP"?

1. Monitoring the mechanisms that contribute to the returnee/IDP's protection

159. Within a community there are a number of "protection mechanisms". Protection mechanisms are elements within a person's environment which make him/her feel safe, and which contribute to his/her protection. Returnees and IDPs very often do not have access to the protection mechanisms that exist in a community. One important element of monitoring returnees and IDPs is to look at the protection mechanisms that exist and the extent to which returnees and IDPs benefit from them. In a way, this information is another form of indicator of returnee/IDP reintegration. Some examples of protection mechanisms are provided below:

• The family is often the most immediate protection mechanism. People can usually rely on the members of their family for assistance. Many returnees and IDPs do not have their family with them. Many returnee/IDP women are either widowed or have returned alone with their children.

• The community can include the immediate neighbourhood or a whole town. People usually depend upon the support of their immediate community for protection. Returnees and IDPs sometimes find themselves the object of suspicion within the community which can even act as a threat rather than a protection mechanism. HROs should always try to develop a sense for the general situation within a community. See Chapter VII- "Information-Gathering".

• Work and participation in economic activities can provide money and serve as a protection mechanism. People that earn money within the community can maintain a certain status and standard of living. They are less dependent on others. Returnees and IDPs may be obliged to spend a period of time without any form of employment or income.

• The administrative structure, including local officials, can offer a certain protection to returnees and IDPs. They can assist in the recovery of homes and land; they mediate in any disputes within the community. These same officials can also, should they wish, create problems for returnees and IDPs and make their lives difficult. The disposition of these local officials towards returnees and IDPs is thus very important. HROs should, through their efforts to become familiar with the community, know the way that the local administration will behave towards returnees and IDPs.

• The judicial system, if it is functioning, can serve as a formal protection mechanism. If the judicial system worked effectively in every community, there would probably be no need to monitor returnees and IDPs. Unfortunately, the reality is that the judicial system often fails to protect the rights of many under its jurisdiction. Also, even if it is generally functioning, the judicial system may be slow or unresponsive to certain sorts of claims (e.g., minor claims). Hence, monitoring may still be useful.

160. Not only should HROs monitor the effectiveness of the various protection mechanisms, but they should also be attentive to ways of improving the functioning of these mechanisms through training of officials, assistance to the judicial system, etc.

2. Monitoring reintegration

161. "Reintegration" is not an easy notion to quantify. To make the task easier HROs may find it useful to identify certain "indicators" of reintegration:

• House: Has the returnee or IDP recovered his/her house? Property recovery is often a major problem and can sometimes be linked to violations of human rights.



• Land: Has the returnee or IDP recovered land? Is the returnee/IDP farming the land? Farmed land represents food and an income, both of which are essential to a returning farmer's reintegration in the community.



• Work: In the absence of land does the returnee/IDP have paid or otherwise compensated work?



• Arrest/detention: Has the returnee/IDP been arrested?

• School: Are the returnee's children able to attend school?



• Meetings/associations: Does the returnee/IDP participate in local meetings? Is he/she a member of any local associations?



• Responsibility: Does the returnee/IDP occupy any position of responsibility in the community?

• Discrimination: Does the returnee/IDP feel that he/she is the subject of discrimination by members of the community? How has the local population reacted to the returnees and IDPs?

• Material assistance: Does the returnee/IDP receive any material assistance because of his/her status as a returnee? This last point can be both positive and negative. Returnees and IDPs that receive material assistance may then be in a better position to re-establish themselves in the community. The fact of receiving such assistance, however, indicates that they are still distinguished from the community. In addition, members of the community may be angry or jealous of the material assistance and may then reject the returnee.



• Sense of security: Does the returnee/IDP feel safe? If not, why?

3. Effective monitoring involves regular contacts with sources in the community

162. In the same way that HROs developed contacts at the beginning of the returnee/IDP process, these contacts with the authorities, with journalists, teachers, etc. should be maintained. They can provide useful information on the reintegration of returnees and IDPs into the community.

4. Taking action

163. Depending on the mandate of the field operation, it may be possible for HROs to take action to address problems identified by monitoring. HROs can refer to the information on the human rights of returnees and IDPs provided in this chapter, and may bring problems to the attention of local authorities.

For example, monitoring may reveal that a group of returnees and IDPs have been refused access to their houses and land. HROs can make contact with the relevant authorities and explain both the importance and the right of returnees and IDPs to recover their own property. Similarly, in situations where returnees and IDPs are the victims of arbitrary arrests, HROs may be able to visit them in detention and subsequently negociate their release. See Chapter IX - "Visits to Persons in Detention".

164. HROs may be able to mediate between the returnees and IDPs and the local authorities to address particular problems. It is essential, however, that HROs remain neutral as to potentially conflicting claims or rights. It will be important for the operation to develop clear policy guidelines on the principal problems likely to be encountered during monitoring. With reference to the above examples, HROs should know exactly what type of mediating role they may fulfil, if any, and the basis of this role should be established with the national and local authorities. For further guidelines refer below to part 7 (paras. 178-98). See Chapter XX- "Conciliation and Mediation in the Field".

5. When does a returnee/IDP stop being the subject of particular monitoring?

165. As has been shown earlier in this section, HROs monitor new returnees and IDPs because they are seen as a "high risk" category. Monitoring of returnees and IDPs cannot continue indefinitely. When are returnees and IDPs no longer a "high risk category"? When does a returnee/IDP stop being a "returnee" and become a member of the local population? This question is important because it indicates that there is a point at which HROs stop monitoring each group of returnees and IDPs.

166. Providing a clear and precise response to the question "when does a former returnee/IDP stop being a 'returnee'" is not easy. Two guidelines can be proposed, that of the situation of the returnee, and that of time. These indicators should be used together:

a. Situation

A returnee/IDP is no longer a "returnee" when he/she forms a part of the community and is not distinguished from that community for any reason related to the person's former status as a refugee or displaced person. One indicator can be whether aid organizations still distribute aid to the individual - although distributions may end simply because a budget as been exhausted. Another indicator is whether the returnee/IDP is the victim of any discrimination based upon his/her former status as a refugee. The most common areas of discrimination are identified above, including home, land, employment, etc.

b. Time

In parallel with the situation of the returnee/IDP, the HRO should also use time as a guideline. After a certain lapse of time, for example six months, HROs need to focus their attention on new returnees and IDPs. The time after arrival should be fixed, according to the experience of the human rights field operation, to cover the period when rights violations that are motivated by the fact that the victim is a returnee/IDP would be expected to occur. Setting a specific time indicator can be very difficult. In some countries returnees and IDPs can continue to suffer from violations of their human rights two or more years after returning to their homes. Care must be taken in setting any time limits.

H. Human rights field operation: structure of work with returnees and IDPs

167. If protection of returnees and/or IPDs is a significant issue in the country of operation, it is important that adequate attention be given to creating a structure within the human rights operation for dealing with such issue. The structure chosen will ultimately depend on the returnee/IDP situation in the region and on the mandate of the operation. Some guidelines are provided here.

1. Returnee/IDP unit or focal point

168. The operation may wish to establish a specialized returnee/IDP unit as a part of the central office, or to appoint an individual as a returnee/IDP focal point within the office. The unit or focal point can be given responsibility, under the direction of the chief of the operation for developing the operation's policy towards returnee/IDP issues and for developing and implementing a plan of action.

169. The unit or focal point would also be responsible for developing contacts with other relevant international organizations and with representatives of the national authorities. It should develop "national profiles" on the returnee/IDP situation and should co-ordinate the work of the area offices in this regard.

170. It is essential that any returnee/IDP structure within the human rights operation identify the principal problems that HROs are likely to encounter during monitoring of the situation, return and reintegration of displaced persons. For example, the information available to the unit may indicate that returnees and IDPs will be particularly at risk from: violations of the right to freedom of movement during the return; violations of the right to reclaim homes and other property; violations of the right to freedom of assembly; and violations of the right to liberty.

171. The returnee/IDP unit should develop the field operation's policy with regard to each of these human rights violations. HROs should be informed of how to identify each violation, and of what they may do, under the mandate and any agreement with the national authorities, to address the problem. In this way it will also be possible for HROs to raise such problems with the local and national authorities before they occur, and for problems to be dealt with as effectively as possible.

172. The returnee/IDP unit should give particular attention to the needs of vulnerable groups, such as women and children, within the returnee/IDP population. HROs should be informed of what rights vulnerable groups have and how those rights may be protected. In many returnee/IDP situations there will be other international organizations working specifically with these vulnerable groups. The returnee/IDP unit should co-ordinate the work of the human rights operation, towards vulnerable groups, with these organizations.

173. As mentioned above, much of the monitoring of returnees and IDPs will involve registering and addressing cases of human rights violations. In this respect the work of the returnee/IDP unit will overlap with that of any monitoring or similar unit that exists within the operation. It is important that the work of each unit be clearly defined, and that lines of communication between the units, and between the area offices and each unit, be efficient.

2. Area offices and staff

174. As information arrives on an evolving returnee/IDP situation it may be useful for the human rights operation to open area offices in regions to which displaced people are expected to return (if this step has not already been taken).

175. Within each area office at least one staff member should be appointed as the returnee/IDP officer. This person will maintain contact with the central office returnee/IDP unit and will be responsible for contacts with the principal authorities and relevant international organizations in the region, as to returnee/IDP issues. The returnee/IDP officer will also be responsible for ensuring that other staff members in the office are informed of policy decisions taken by the returnee/IDP unit.

176. Each area office should produce a "regional profile" of the returnee/IDP situation in the region and should write regular report updates on the evolution of that situation (perhaps as a part of the office's periodic reports). These reports on the changing situation should be disseminated throughout the operation, because major changes in one region may have a significant impact on the work of other area offices.

3. Logistical preparations

177. There are a number of logistical and resource issues which require preparation. Depending on the size of the human rights field operation, and on the particular role that it will play with regard to returnees and IDPs, the director of the human rights operation may wish to increase the numbers of HROs within the operation to cover the return period. Returnee/IDP monitoring is very labour intensive and the more officers that are present in the field the more effective will be the monitoring.

178. In some situations it may be appropriate to "re-deploy"' staff already with the operation to areas where they will be most needed. Any movement of staff members from one area office to another should be planned as far in advance as possible to avoid disrupting ongoing work.

179. Re-deployment and the arrival of new staff members will only be effective if a sufficient number of vehicles and radios (where relevant) are provided to them. In some places these items may not be readily available and their purchase will have to be planned well in advance.

4. Coordinating and collaborating with other organizations

180. Every effort should be made to coordinate the work of human rights area offices with other organizations that are also working with returnees and IDPs to ensure that there is no duplication or contradiction. This principle is especially important with regard to monitoring the actual return, a period during which displaced populations may be the most at risk.

181. Where major problems arise in the return process it is very important that the principal international organizations coordinate and collaborate in their response. For example, in the event of a serious violation of human rights committed by local authorities against the returnees and IDPs the international organizations should seek a common position. This consultation process between organizations should take place at the central office level and also at the area office level. Guidance on organizations with which area offices should develop contacts may be found in Chapter VII- "Information-Gathering".

182. This section provides brief guidelines on what information should be shared and how different responsibilities may be attributed.

a. Sharing information

183. The main information of interest will be objective details concerning the returnee/IDP population -- such as the reasons for return, the voluntary nature of the return, the numbers of people expected, when and where they will arrive, the routes and means by which they will travel, the presence of vulnerable groups (women, children, etc.), and the numbers and types of violations reported. Some organizations, such as the ICRC, may be unable to provide certain information because of confidentiality rules in their mandate.

184. It may be useful to develop common reporting forms that can be used by all of the principal organizations involved in monitoring a large return. This common approach will facilitate the exchange of information. Where radio communications are used, a common radio channel should be designated and staff members selected to maintain contact with partner organizations.

b. Choosing who does what

185. There may be an overlap between the respective mandates of the human rights field operation and those of other organizations. It is important that certain tasks be attributed to certain organizations.

186. When choosing the tasks that each organization will carry out, it is useful to consider such factors as resources (in terms of staff members, transport, and communications facilities), access throughout the relevant region -- returnee/IDP monitoring may require crossing international boundaries, going into military restricted areas, entering detention centres, etc.-- and expertise (legal, medical, logistical, etc.).

c. Setting up joint structures

187. To facilitate communication it may be useful for the human rights field operation to set up or participate in structures that gather all of the principal international organizations working with returnees and IDPs. This structure could bring together one representative from each organization at the national level and, where possible, at the area office level. Meetings should be fixed at regular intervals.

I. Conclusions

188. In conclusion, it is useful to point out that all of the different stages at which HROs may work towards the protection of the rights of returnees and IDPs -- monitoring and protection during a period of displacement, preparation for the return, monitoring during the return, and monitoring following the return and during a period of reintegration -- will probably take place concurrently. There may, simultaneously, be people at every one of these stages.

189. In the past the objective of the international community, when working with refugees -- and by extension returnees -- was to seek one of three durable solutions: permanent integration in the country of refuge, permanent resettlement in a third country, or voluntary repatriation. Where there are very large numbers of refugees, however, the only realistic option is the eventual return of displaced people to their own country and community.

190. The recent emphasis of international efforts on behalf of refugees has thus focused increasingly on re-integration in the country of origin. Positively, this focus has led the international community to concentrate further on the original causes of displacement, and specifically to ensure that respect for human rights within a country of origin is suitable for refugees to return. Further, the increasing focus on repatriation and on human rights within countries of origins has drawn attention to the human rights situation of IDPs, often identical to that of refugee from the same country. United Nations human rights operations, in collaboration with the work of humanitarian agencies, have an essential role to play in addressing the human rights situation of returnees and IDPs.

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1. Not all of the legal references are provided here and a more detailed and complete reference can be found in the report of the Special Representative for Internally Displaced Persons, UN Doc. E/CN/1996/52 (1995). This section also relies heavily upon United Nations High Commissioner for Refugees, Handbook, Voluntary Repatriation: International Protection (1996).

2. Report of the Special Representative of the Secretary-General, Mr. Francis Deng, to the UN Commission on Human Rights, UN Doc. E/CN.4/1996/52 (1995).

3. Adopted by UN General Assembly in resolution 47/133 of 18 December 1992.

4. Adopted by the 1993 World Conference on Human Rights.

5. United Nations Convention on Prohibitions or Restrictions of Use of Certain Conventional Weapons.

6. Adopted by UN General Assembly in resolution 39/46 of 10 December 1984.

7. For further information on the rights specific to children, please refer to Chapter XII: "Children's Rights".

8. Adopted by G. A. res. 48/96 of 20 December 1993.

9. Committee on Economic, Social and Cultural Rights, General Comment No. 5, U.N. Doc. E/1995/22-E/C.12/1994/20, at 99 (1994).