IDPs: Need for a National Legal Framework in Sri Lanka

by Andres Angel [Institute for Peace and Security Studies (India)], Daily Mirror, August 12, 2008

IDPs displaced by the Sri Lanka Army & Air Force's bombing and shelling during their current offensive into the Vanni. Photo courtesy TRO, August 13, 2008.

Unlike refugees, internally displaced persons (IDPs) live within the borders of their respective countries. The common understanding of the nature of internal displacement is that national authorities must commit as the sole entity with primary responsiblity for protection, assistance and development of IDPs.

In the absence of legislation that legally decrees the rights of the displaced, and a national legal framework that specifically, entirely, and holistically refers to internal displacement, IDPs become deprived of the basic necessities of life. This encourages their marginalisation from within society which in turn contributes to the breakdown of social and cultural structures and identities. Over time, this process leads to the creation of vicious cycles of crime and poverty which ultimately compound to worsen a nation's prospects for economic, political and social development.

The ongoing ethnic strife between Sri Lanka's Sinhalese majority and Tamil minority has led to one of the worst crises of internal displacement in South Asia. In terms of the proportion of the population, Sri Lanka has one of the world's largest IDP populations. Internal displacement in Sri Lanka predominantly stems from conflict-related violence caused by the clashing of the government's armed forces with the Liberation Tigers of Tamil Eelam (LTTE). Disregard for human rights has traditionally caused displacement as rebel and government forces indiscriminately assault, arrest and abuse the civilian populations.

It is difficult to accurately gauge the number of IDPs in Sri Lanka due to several factors. Apart from the absence of appropriate monitoring mechanisms, there are divergent figures between civil organizations' and government data. The overall lack and ambivalence of existing data suggests that the precise number of IDPs is unknown. Conservative estimates report that the ethnic strife has left approximately 800,000 citizens internally displaced since the armed conflict broke out in the late 1970s. Other assessments estimate that one million Sri Lankans have been displaced at some point in the conflict. According to the United Nations High Commission for Refugees, there are approximately 460,000 IDPs presently in Sri Lanka. There is no public document of the Government of Sri Lanka (GoSL) that indicates the number of IDPs in the nation today. Yet, the data that the government has made public indicates that 182,802 citizens have been displaced between April 2006 and May 2008.

In Sri Lanka, IDPs have not been accorded a special place in the legal system. Sri Lanka's IDPs are citizens with the same obligations, rights and duties, as those who ,have not been displaced. There is no single piece of legislation that addresses IDPs specifically let alone any comprehensive legislation. Existing provisions for protection are scattered in no systematic or orderly manner, with little cohesion, and without addressing critical concerns. Nonetheless, the rights of IDPs are partially secured by eight existing common national laws and by a non-binding National Framework for Relief, Rehabilitation and Reconciliation (NFRRR).

By neglecting IDP-specific legislation, the GoSL fails to tackle the needs of a portion of the population that lives under circumstances distinct from the rest of the citizens. Despite the fact that all of the existing entitlements affecting IDPs are common laws, they are for the most part Authority-creating decrees. The lack of accountability of and under-funding by the authorities, calls into question the effectiveness of the Acts. Furthermore, adding to the faults of the legislation, several Acts are special and temporary provisions intend to provide short-term humanitarian cures as opposed to long-term sustainable solutions. Their nature as common laws and their emphasis on immediate response, as opposed to sustainable and durable solutions, continues to negatively affect IDPs. The effectiveness of the existing legislation is further called into question as the Acts do not take into consideration all phases of displacement- (1) generating phase or pre-displacement, (2) displaced phase, and (3) resettlement phase or post-displacement. The ineffectiveness of the present legislation is proved by its limited effect on the day-to-day reality of IDPs. Throughout the Acts there is a recurring theme suggesting that the present law is clearly inapplicable to the conditions of IDPs.

On the other hand, the adoption of the NFRRR in 2002, as the official policy of the GoSL towards conflict-affected populations, is neither a binding law nor decree and thus provides no legal protection to IDPs. The Framework simply adopts the Guiding Principles on Internal Displacement without considering that their effectiveness in easing the displacement crisis depends on the degree to which they can be translated to procure the development of legislation, provisions, and directives at the national level and reflecting the country's situation. The NFRRR only has two clauses pertinent to displacement and fails to be useful because it depicts incongruent intentions between the government's goal and the national reality of Sri Lanka.

A national legal framework for IDPs establishes the rights of IDPs, decrees a government's responsibility to uphold them, and establishes the basis of reference for a national policy while reflecting national commitment towards internal displacement. Closely related to the national legal framework is a national policy which stipulates the specific course taken by a government in its attempt to end displacement. National policies delineate the course of action in a non-binding plan that corresponds to the adoption of binding national legislation. For the national policies to stand the test of time, they must be based on a preconceived set of rights delineated in a legal framework.

Until today, IDP policy in Sri Lanka has been largely extemporary while driven by individual personal fervor as opposed to national institutional schemes. Existing binding national laws and a non-binding national framework have proven ineffective in rendering adequate protection and gradual solutions to displacement in Sri Lanka. The lack of a national legal framework is evident in the unwillingness of the GoSL to accept the imposition of legally-binding standards of protection. Convenient politically-motivated policies have traditionally dominated IDP discussion and legislation. To do away with this, a national legal framework for IDPs should be passed in an Act of Parliament to become a binding law.

How effective is international humanitarian law in rendering protection to Sri Lanka's IDPs?

Sri Lanka's IDPs are entitled to the human rights and humanitarian law protection that is available to them as well as every other citizen. The Guiding Principles are composed of abstract humanitarian law and by definition are not binding. If they are cross-referenced with international law in theory they become binding. Although the NFRRR includes the Guiding Principles, their prescriptions are not applicable to Sri Lanka's IDPs because they have not been legally decreed in an Act of Parliament. Sri Lanka has not adopted enabling legislation for the Guiding Principles and as a consequence international humanitarian law has been ineffective in rendering protection to the nation's IDPs.

How effective can a national legal framework for IDPs be if there is no political will to implement its prescriptions?

Making the framework binding on the government will only occur when an administration has the political will to propose such legislation. Like any other Act of Parliament, the national legal framework will only be effective if there is the political will to abide by the law. Apart from political commitment, the framework will require the strengthening of Sri Lanka's judicial system in order for it to be effective. The benefits of the framework are contingent upon the executive and judicial compliance with the law.

Why is it important for the national legal framework to define the cessation of IDP conditions?

It is crucial for the national legal framework to delineate the parameters to gauge the end of displacement because the principles, rights and guarantees stipulated by the framework cannot be applied indefinitely. If there are no cessation clauses, the privileges bestowed by the framework could motivate resettled citizens (former IDPs) to continue demanding the special aid and assistance which IDPs are entitled to. (IPCS)

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