JURIST Guest Columnist Kateryna Dronova, of VoxUkraine, discusses the Ukranian regulations governing IDP protection…
On October 20, 2014 the Ukrainian Parliament passed the Law on the Rights and Freedoms of Internally Displaced People (hereinafter the Law on IDP). This piece of legislation generally makes a good impression on the public and reflects the willingness of Ukrainian authorities to provide a proper, active response to the widespread critique. For instance, the Law on IDP addresses three major requests previously expressed by Human Rights Watch: it establishes a Unified IDP State Registry, endorses simplified procedures for obtaining new residency registration and (in cooperation with UN bodies and reputable NGOs) takes steps aimed at raising awareness of government agencies’ work on IDP problems. This law also introduces a set of protections for educational, property, and labor rights and regulates the provision of humanitarian help by broadening and upgrading the set of measures previously introduced by the Law On Ensuring Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine (hereinafter the Law on Occupied Territories). However, there are a number of important issues either entirely ignored or only partially covered. This article aims to discuss serious omissions and grey areas in Ukrainian regulations governing IDP protection.
Definition and Citizenship Requirement
There is no globally accepted definition of IDP in international law and states have full discretion over outlining the notion in domestic legislation. Article 1 of the Law on IDP defines an internally displaced person as “[…] a citizen of Ukraine […], who was forced to leave or voluntarily left the place of residence in order to avoid or as a result of the negative effects of armed conflict, temporary occupation, widespread violence, massive violations of human rights […].” Thus, only Ukrainian citizens may benefit from protection granted under the Law on IDP. This definition narrows down the concept adopted in the Guiding Principles on Internal Displacement, which defines IDP as “persons […] who have been forced or obliged to flee or to leave their homes or places of habitual residence.” Instead of citizenship, this definition requires an individual to demonstrate that he/she has been protractedly or permanently living in the particular state as a prerequisite to qualify for IDP status.
Therefore, it covers a larger group of people affected by a conflict, including stateless persons or foreign nationals who have been permanently residing (or admitted for a prolonged period) in the conflict territory. While IDP status entitles this broader social group to the rights and guarantees relevant to their protection during displacement, return or resettlement, it does not automatically award them with rights specifically reserved to citizens (e.g. the right to vote). Hence, it is highly recommended to revise IDP’s definition to include non-citizens permanently and habitually residing in the zone affected by the conflict—in the East/Crimea.
External and Internal Discrimination
Unlike the Law on Occupied Territories, the Law on IDP contains a non- discrimination clause. Article 14 of the Law on IDP stipulates: “[i]nternally displaced persons shall enjoy the same rights and freedoms […] as other persons. Discrimination on the ground that the person is internally displaced shall be prohibited in the exercise of any rights and freedoms.” The narrative style of this article clearly indicates that the government is aware of the discrimination issues arising with respect to IDPs; but simultaneously, authorities are too busy to take a deeper insight into the problem and prefer to shrug off the critique by adopting a general blanket clause. It is important to note that IDPs most commonly face two types of discrimination: (1) discrimination of the IDP within the hosting community; and (2) discrimination among diverse social groups within IDP community. Article 14 attempts to address only the first type and is very unlikely to succeed.
Various reputable international organizations have urged the Ukrainian government to address the problem of IDP’s discrimination in hosting communities on multiple occasions. For instance, here is a July 2014 quote from HRW’s open letter to President Poroshenko:
“[i]n Vinnytysa and Lviv regions [there is] a rising level of resentment among the local population because of a fear that IDPs would take jobs and resources, especially in places that have received many displaced people.”
The growing dissatisfaction of the Western Ukrainian population with the increasing number of IDPs from the East is easily traceable through postings in social media. However, such problem is not surprising—population hosting IDP do so at significant costs to themselves. In the Ukrainian context, this issue is additionally complicated by the notable cultural difference between the western and eastern populations in traditional social structures, behavioral norms, livelihoods, etc. The government is likely to worsen such adversarial attitudes by singling out the IDP category with the purpose of granting them additional benefits. So far the best advice [PDF] to remedy such dissatisfaction is to address the needs of the displacement-affected communities (i.e. IDPs, hosting communities, communities receiving returning IDPs) instead of focusing solely on IDPs.
The other problem of the utmost priority, emphasized by all international human rights organizations, is granting additional protection to the groups with inherent vulnerability within IDP populations—see principles 4, 7(3d), 18(3), 19(2), 20(3), 23(3,4)—of the Guiding Principles. Research reveals [PDF] several categories of persons with inherent vulnerability: minors, single parents, older persons without family support, single or unaccompanied women, pregnant or lactating women, women-headed households, widows or orphans, persons with disabilities and traumatized persons and members of ethnic/religious minorities. These populations most often face sexual or economic exploitation, exclusion from political participation, hardships with claims concerning their traditional land/property and denial in assistance for needs, e.g. water consumption, medical treatment. Therefore, legislators and executives are obligated to develop and implement mechanisms for providing adequate remedies in cases of discriminatory practices and ensure the empowerment of these social groups.
Enforcement and State Responsibility
The Law on IDP does not introduce any specific enforcement mechanism or provisions that would hold the government responsible for a failure in implementation. The most controversial of all adopted provisions is Article 15(3), which stipulates that the responsibility to provide for an adequate compensation rests upon the state, which caused an internal displacement by the act of aggression or annexation of Ukrainian territory. There also exists a similar provision on Russia’s responsibility for the violation of civil and political rights on occupied territories in Article 5(3) of the Law on Occupied Territories. These provisions raise eyebrows since there is no international judicial body that has recognized Russia’s responsibility for any type of violations in the occupied Ukrainian territory. Even a hearing has yet to take place.
In Georgia vs Russia [PDF], the International Court of Justice established that Georgia was precluded from recourse since it failed to enter into negotiations with Russia or to follow special procedures under the Convention on the Elimination of Racial Discrimination. Thus, certain diplomatic actions are required even prior to the international judicial bodies’ address, while decisions of these bodies—once they gain jurisdiction to hear the case—may not necessarily favor Ukraine’s position. However, Ukrainian legislators were obviously opinionated to assume Russian responsibility and incorporate this assumption into national legislation. This provision is even more nonsensical when considering the fact that Ukraine’s domestic legislation does not affect the Russian Federation’s legal responsibility in any possible way. Rather, Ukrainian authorities should focus on their own responsibility to protect their own citizens rather than search for alternative ways to shift the blame on Russia.
The newly adopted Ukrainian legislation governing the IDP protection has a very distinctive logic to its structure, if compared to international norms. Relevant international humanitarian laws envision three major blocks of mechanisms aimed at protecting civilians: (1) measures aimed at preventing displacement; (2) measures undertaken during a displacement; and (3) measures enhancing the return of a displaced person. In contrast, the Ukrainian approach divides the population affected by a conflict into two major groups: citizens, who moved from the occupied territories—satisfying the criteria of the Law on IDP—and those who stayed (protected by the Law on Occupied Territories).
However, such logic leaves various social categories (foreigners, stateless persons, refugees) without due attention. Additionally, both laws are pointing at various problematic issues in a chaotic manner; instead of addressing the needs of a certain social group on each of the three stages of displacement, legislators attempt to adopt a single measure to be in effect for an indefinite period of time (e.g. state registration or housing) and to tie certain rights to this measure (e.g. family reunification as part of the registration policy requirement). Although the concept of IDP is relatively new and it is hard to judge the effectiveness of this particular logic, Ukrainian authorities should be more cautious when setting the boundaries for IDP protection. They should develop and implement measures aimed at intensive political engagement of the displaced population and make sure that discriminatory treatment targeting IDP is not tolerated.
Kateryna Dronova is a 2011 graduate of the Kyivi-Mohyla Academy Law School. She earned an LL.M in Human Rights Law from Central European University. Kateryna currently serves as an Associate at VoxUkraine, a web-based portal focused on recent developments and reforms in Ukraine.
Suggested citation: Kateryna Dronova, Foreign Natives: Internally Displaced People in Ukraine, JURIST – Student Commentary, Nov. 6, 2014, http://jurist.org/student/2014/11/Kateryna-Dronova-displaced-ukraine.php.
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