Internally displaced persons under international law: a case study for Kenya
Internal displacement often occurs as a result of orchestrated human rights violations, internal strife or armed conflicts. As a result, the capacity and willingness of the government concerned to provide assistance and protection to the internally displaced persons may often be doubtful. The state may, therefore, not seek external help; it may even reject any assistance offered to its displaced population. This is based on the perspective that from an international law point of view, the primary responsibility for the protection and assistance of Internally Displaced Persons (IDPs) rests with the individual state. This is in accordance with the principles of sovereignty and non-intervention. This contrasts with the well-documented law in respect of refugees. However, the issue of Internally Displaced Persons (lDPs) is not a new phenomenon in international law. The world community is still grappling with the gravity, scope and complexity of this new phenomenon. Not to mention that due to the underlying causes, most states do not want to acknowledge the existence of IDPs; doing so would reflect on a country's political stability, and may threaten its standing in the World community. This thesis is a critical analysis of these two related, but different areas of international concern which transcend both humanitarian and human rights law. Emphasis is placed on the evaluation of the situation in Kenya in view of its positioning in Africa. Considering the relative resemblance of the causes and effects of IDPs in most states, the anticipated solutions to the problem should be applicable in other parts of Africa and the world at large. The thesis also evaluates what constructive meaning should be placed on the state sovereignty, and how this impacts on the following: the attitude towards internally displaced persons (IDPs), the provision of humanitarian assistance, and the ultimate protection offered. The restrictive nature of 'state consent' on matters concerning IDPs due to their special status in ntemationallaw has also been appraised. This study also reviews the importance of the existing internationallaw that applies in cases of internal displacement, which should be emphasized, and to which states must adhere. Contemporary international law, though not directly protecting IDPs, has provisions on the basis of which IDPs human rights can be enforced, including inter alia provision of humanitarian assistance. Several pertinent questions arise. Why single out the issue of protection and assistance of IDPs under the international humanitarian law? Why attach human rights protection to IDPs that do not apply to victims of war, human rights abuse and natural disasters? It is notable that victims of such tragedies may not essentially be displaced, but may, however, not receive protection because of discrimination, though the circumstances giving rise to their predicament may be similar to those giving rise to IDPs. There are reasons for this special discern for the assistance and protection of IDPs. One is that it is perceived as legally unacceptable to provide protection to refugees, but not to IDPs. The two groups may be residing in the same camps. Further, IDPs are often more disadvantaged than refugees, because they may be out of reach of international agencies, and may not have access to basic necessities such as shelter. Last but not least, IDPs are a more discrete group than civilians in general. Their distress may, therefore, be politically more acceptable due to heightened human rights protection than that of the entire population.