The Displacement Crisis in Ukraine: Key Legal Issues
Erin MooneyIndependent consultant to the UN and other international organizations, as senior policy advisor, field practitioner, and researcher on forced migration, human rights and humanitarian issues.
One of the most immediate and dramatic human consequences of the 24 February 2022 invasion of Ukraine by the Russian Federation was of millions of people fleeing for their lives. 1 In what became the world’s fastest growing displacement crisis since World War II, nearly 13 million people—more than a quarter of Ukraine’s population—fled their homes and communities within the first two months of the war. 2 Of these, more than 5.2 million people, mostly women and children, 3 fled to other countries, while 7.7 million remained within Ukraine, as ‘internally displaced persons’ (IDPs). 4 This massive displacement crisis in fact exacerbated a pre-existing one, which had begun with Russia’s annexation of Crimea in March 2014 and the outbreak of armed conflict in eastern Ukraine in April 2014. By March 2015, almost 2 million people from these regions had fled their homes: nearly 1.2 million became IDPs in Ukraine while the remainder left the country, many to the Russian Federation. 5 At the end of 2021, there were still 854,000 IDPs in Ukraine. 6 In 2022, after the dramatic escalation of eight years of conflict in the Donbas and Crimea regions of Ukraine into a full-scale war engulfing the entire country, many of these IDPs from 2014 and 2015 were forced to flee again.
By early 2023, nearly one year after Russia’s invasion, a staggering almost 19 million people—nearly half of Ukraine’s population—had been uprooted by the war. Among these, more than 5.3 million persons were internally displaced in Ukraine, while there were more than 8.1 million refugees from Ukraine in Europe alone. 7 Added to these numbers, an estimated 5,562,000 people who had been displaced either within Ukraine or to other countries, have returned to their habitual place of residence in Ukraine in recent months; however, with the ongoing conflict, their return is precarious and not necessarily permanent. 8 Indeed, the war continues to force large numbers of people to flee: over 640,000 people became displaced in the two months spanning late November 2022 and late January 2023 alone. 9
While international attention to the displacement crisis caused by the war largely has focused on the millions of people who fled Ukraine to other countries, this paper addresses the situation of the millions of people displaced by the conflict who are in Ukraine. Specifically, it concerns three groups of persons. First, it focuses on persons who have fled their homes and are internally displaced in Ukraine. Second, it also encompasses the situation of IDPs who have returned to their area of habitual residence in recent months, as well as of refugees who have returned to Ukraine and done the same. 10 Third, also of concern is the situation of civilians who have not yet been displaced by the conflict but are at risk of so becoming. Indeed, more than two million persons in Ukraine who had not yet been displaced in the first year of the war reportedly now are actively considering fleeing their homes due to the conflict. 11 Each of these groups of persons have distinct needs and vulnerabilities requiring attention and responses in line with international legal standards.
This paper sets out key legal issues related to the protection of civilians from arbitrary displacement, to ensuring they are protected and assisted once displaced, and to supporting them to find a durable solution to displacement. The relevant standards are set by international humanitarian law, international human rights law and, as relevant, international refugee law. The UN Guiding Principles on Internal Displacement 12 are also a key reference. The Guiding Principles define ‘internally displaced persons’ 13 and spell out the rights of IDPs and the responsibilities of States and other authorities towards them in all phases of displacement. Although not a legally binding document in of itself, the Guiding Principles expressly are based on and consistent with the binding sources. 14
The Guiding Principles have gained broad international standing and recognition. Most notably, in 2005, the Heads of State of all Member States of the United Nations, including the Russian Federation and Ukraine, recognized the Principles as ‘an important international framework for the protection of internally displaced persons.’ 15 Reaffirming this at the regional level, all Participating States of the Organization for Security and Cooperation in Europe (OSCE) recognize the UN Guiding Principles ‘as a useful framework’ for addressing internal displacement. 16 The Council of Europe’s Committee of Ministers, noting that the UN Guiding Principles ‘have gained international recognition and authority’, has stated its ‘commitment to the spirit and provisions’ of the Principles, affirmed that the Principles, along with other relevant international instruments of human rights or humanitarian law, apply to all IDPs, and has recommended that Member States be guided by these Principles when faced with internal displacement including when formulating domestic legislation. 17 Indeed, the Government of Ukraine, in response to the conflict and earlier displacement crisis that began in 2014, adopted that year a Law on ensuring rights and freedoms of internally displaced persons 18 that largely was based on the UN Guiding Principles and, after certain amendments to the law, is now considered by the UN to be in line with them.
1- Protection from Displacement
‘Every human being has the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence’ affirms Principle 6(1) of the UN Guiding Principles on Internal Displacement. Reaffirming this right, all Member States of the Council of Europe have declared that ‘the arbitrary displacement of persons from their homes or place of habitual residence is prohibited, as can be inferred from the European Convention on Human Rights’. 19
In situations of armed conflict, the UN Guiding Principles on Internal Displacement specify that displacement is prohibited ‘unless the security of the civilians involved or imperative military reasons so demand’. 20 This principle is well established in international humanitarian law. In situations of international armed conflict, it is a rule of customary international humanitarian law that parties to the conflict ‘may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand’. 21 Outside of these circumstances, the act of ordering displacement constitutes a grave breach of the Fourth Geneva Convention and its Additional Protocol I 22 and a war crime. 23 A similar rule applies in non-international armed conflicts, 24 including by virtue of customary international humanitarian law 25 and under international criminal law. 26 In situations of international armed conflict, international humanitarian law further stipulates that ‘States may not deport or transfer parts of their own civilian population into a territory they occupy.’ 27
The general prohibition of ordering the displacement of civilians armed conflicts does allow an exception, as the above wording suggests, if the security of the civilians concerned or imperative military reasons, such as clearing a combat zone, require civilians’ evacuation. 28 The requirement of ‘imperative military reasons’ can never cover cases of removing the civilian population in order to persecute it. 29 Nor is displacement outside the bounds of occupied territory permitted ‘except where for material reasons it is impossible to avoid such displacement’, 30 while in non-international armed conflict, evacuations may never involve displacement outside the national territory. 31 Moreover, in cases where parties to a conflict do order the displacement of civilians on the grounds of security of the civilian population or for imperative military reasons, they have a corollary duty, under customary and conventional international humanitarian law, to take all possible measures to ensure satisfactory conditions of shelter, hygiene, health, safety and nutrition, and to avoid the separation of members of the same family. 32 Indeed, in all cases, including situations outside of armed conflict, displacement shall never be carried out ‘in a manner that violates the rights to life, dignity, liberty and security of those affected.’ 33
In addition to the general prohibition of directly ordering the displacement of civilians, parties to a conflict have a duty to prevent displacement indirectly caused by their acts, at least those acts which are prohibited under international humanitarian law, such as terrorising the civilian population or carrying out indiscriminate attacks. In the words of a senior legal adviser of the ICRC:
During armed conflict, the civilian population is entitled to an immunity intended to shield it as much as possible from the effects of war. Even in times of war, civilians should be able to lead as normal a life as possible. In particular, they should be able to remain in their homes; this is a basic objective of international humanitarian law. 34
Indeed, whether or not it is a situation of conflict, ‘[a]ll authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid the conditions that might lead to displacement of persons.’ 35 Moreover, the prohibition of arbitrary displacement affirmed in the UN Guiding Principles on Internal Displacement explicitly includes displacement ‘when it is based on policies of apartheid, ethnic cleansing or similar practices aimed at or resulting in altering the ethnic, religious or racial composition of the affected population’. 36 The deportation or forcible transfer of population, defined as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’, constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population. 37 Forcibly transferring children of a national, ethnical, racial or religious group to another group, when this act is committed with intent to destroy, in whole or in part, the group to which the children belong, constitutes the crime of genocide. 38 A group of independent international legal experts has opined that the large-scale forcible transfers of Ukrainian children from Russian-occupied territories to the Russian Federation constitutes ‘a genocidal act under Art. II(e) of the Genocide Convention’ and may also be characterized as ethnic cleansing. 39
On 17 March 2023, the International Criminal Court issued warrants for the arrest of Vladimir Putin, President of the Russian Federation, and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in President Putin’s Office, for the war crime of unlawful deportation of population, specifically children, and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation. The Court specified that these crimes allegedly were committed in occupied territory of Ukraine from at least 24 February 2022. It noted there are ‘reasonable grounds to believe’ that both of the named persons bear individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others, and, in the case of President Putin, also ‘for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control’. Further, noting that this conduct is allegedly ongoing, the Court expressed the hope that ‘public awareness of the warrants may contribute to the prevention of the further commission of crimes’. 40 The UN-established Independent International Commission of Inquiry on Ukraine has identified three scenarios according to which Russian authorities have transferred children from one area they controlled in Ukraine to another to the Russian Federation and has pronounced that ‘[i]n none of the situations which the Commission has examined, transfers of children appear to have satisfied the requirements set forth by international humanitarian law.’ 41
- Protection and Assistance during Displacement
IDPs are entitled to enjoy, in full equality, the same rights and freedoms under international and domestic law as other persons in their country and ‘shall not be discriminated against in the enjoyment of any rights and freedoms on the ground that they are internally displaced.’ 42 At the same time, the fact that IDPs have, as it well-recognized including by the Council of Europe, ‘specific needs by virtue of their displacement’, may require taking specific measures or consideration tailored to meet their needs. 43 Indeed, displacement creates distinct needs and heightened exposure to a range of risks and vulnerabilities. Forced from their homes and in urgent need of shelter, compelled to abandon most of their belongings, cut off from their usual livelihood, and detached from their land and community, displaced persons suddenly find themselves stripped of their normal sources of security and habitual means of survival. Families often become separated, with especially serious consequences for children, older persons, and persons with disabilities. Often, IDPs remain trapped in conflict areas. They may find themselves in areas that are inaccessible or hard to reach by humanitarian actors, for instance, due to insecurity or political and administrative obstacles. Risks of sexual violence, sexual exploitation, and trafficking, including child trafficking, are intensified. Psychological distress is prevalent. Exacerbating their plight, IDPs often remain at risk of further, secondary, displacement; sometimes even being displaced multiple times.
Attention to the specific vulnerabilities and risks that IDPs face infuses the provisions of the UN Guiding Principles regarding protection and assistance during their displacement. Typically, each Principle reaffirms, as a general principle the right of every human being to the particular need, for instance, for safety, freedom of movement, official documentation, education. The relevant provision then details in subsequent paragraphs what specific measures may be required in order to give effect to this right for IDPs.
For example, displacement often results in the separation of families, the reunification of which is especially critical for children, older persons, and persons with disabilities. After affirming that everyone has right to family life, Principle 17 specifies that for IDPs, respect of this right means that family members who wish to remain together during displacement shall be allowed to do so, that families separated by displacement should be reunited as quickly as possible, and that IDP families confined in camps have the right to remain together. 44 Another entire principle is devoted to establishing the fate of, and providing next of kin with information about, any family members of IDPs who are reported to be missing. 45 The Council of Europe elaborates that states’ responsibility towards IDPs includes ‘locating missing family members, notably those that have been taken hostage’ and conveying to relatives any information on missing persons’ whereabouts. 46 In contexts where the effective control of territory is divided, UN guidance recommends: ‘national and de facto authorities should cooperate pragmatically (eg through humanitarian actors or other impartial intermediaries) to allow for family reunification despite obstacles such as closed boundary lines.’ 47
In the chaos of displacement, IDPs and refugees also often lose their official personal documentation, such as birth and marriage certificates, passports, voter identification cards, property title deeds, and social security cards. It could be that such documents are destroyed as a result of the hostilities or even confiscated, for instance, at checkpoints. IDPs have the right to reissuance, or issuance if they never had them, of such documents, and relevant authorities have the responsibility to facilitate this without imposing unreasonable conditions, such as requiring return to one’s area of habitual residence. 48 The Council of Europe emphasizes that IDPs ‘shall be provided with all documents necessary for the effective exercise of their rights as soon as possible following their displacement and without unreasonable conditions being imposed’. 49 In situations where a state does not have effective control over parts of its territory, interim practical solutions will be necessary. UN guidance recommends: ‘national authorities may recognize papers provided by de facto authorities as prima facie factual proof of personal status, without this implying legal recognition of the entities providing the papers.’ 50
As IDPs are still within their country, primary responsibility for their protection and assistance rests with their own government. 51 Where a state lacks the will or capacity to effectively fulfil its responsibility to protect and assist IDPs, it is expected to request or accept, and to facilitate, offers of humanitarian assistance, including by providing international humanitarian actors with safe and unimpeded access to IDPs and other civilians in need. 52 Indeed, as Council of Europe member states jointly have emphasized, the principle of state responsibility for IDPs ‘entails requesting aid from other states or international organisations if the state concerned is not in a position to provide protection and assistance to its internally displaced persons’ and ‘not to arbitrarily refuse offers from other states or international organisations to provide such aid.’ 53
Since the outbreak of the conflict and displacement crisis in Ukraine in 2014, the Government has expressed its commitment to ensure the safety and welfare of IDPs, and to do so in line with international standards. The Government of Ukraine has taken many legal, policy, and institutional measures to respond to the needs and protect the rights of IDPs, including adopting specific legislation on IDPs, establishing a ministry to lead the national response to IDPs, and implementing many programs for IDPs. 54 The 2014 Law on Ensuring the Rights and Freedom of Internally Displaced Persons is the core reference, with many other pieces of national legislation also relevant. A compilation and analysis of Ukraine’s national legislation relevant to internal displacement has assessed the compliance of Ukraine’s national legislation with relevant international and regional standards, most notably the UN Guiding Principles on Internal Displacement and the European Convention on Human Rights. 55 The findings and recommendations of this study were welcomed by the Government of Ukraine as well as civil society and utilized by the Verkhovna Rada (Parliament) Committee for Human Rights to inform a series of legislative amendments by the Government of Ukraine to enhance protection of the rights of IDPs. 56 To support implementation of domestic legislation, specialized training is being provided to judges on the judicial protection of IDPs and other war-affected people. 57
Ukraine also generally has proven responsive to recommendations from international and regional institutions to improve, where necessary, its response to internal displacement. 58 Indeed, Ukraine’s national law on IDPs contains an express commitment by the Government to cooperate with other states and international organizations to prevent displacement, to protect the rights of IDPs and to support solutions for IDPs. The Law then spells out several ways in which the Government will facilitate the work of international humanitarian, charitable, technical or any other aid for IDPs, for instance, exempting this from tax and customs fees. 59 At the same time, the sheer scale of the IDP crisis, even more so since 2022, has meant that additional assistance and capacity has been requested by the Government. 60
However, a tremendous practical obstacle to the ability of the Government of Ukraine to discharge its responsibilities towards IDPs arises in conflict areas currently not under its territorial control. 61 As a result, the situation of IDPs and other, non-displaced, civilians in these areas is especially concerning. Ever since the outbreak of conflict in 2014, the UN reports that restrictions on the movement of humanitarian staff relief supplies across the front lines has ‘imposed tremendous challenges and limited humanitarian assistance in these parts of the country.’ 62 Since the escalation of the war on 24 February 2022, the UN reports that no inter-agency humanitarian convoys have been able to cross from Ukraine to areas of the control under Russian military control ‘despite repeated attempts and notifications to the Russian Federation. 63 International and local non-governmental humanitarian organizations face the same problem, reporting that it remains ‘near impossible for aid workers to reach the communities most in need’ and that ‘[s]ome areas have not received any assistance from aid organisations’ for now over a year. 64 These severe problems of humanitarian access repeatedly have been flagged to the UN Security Council, with the UN Emergency Relief Coordinator reminding the parties to the conflict that among the ‘basic rules of war […] they must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, wherever they are.’ 65 This is a norm of customary international law. 66 Moreover, it is relevant simply to note that under the Statute of the International Criminal Court extermination, defined as including ‘the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’ constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, and with knowledge of the attack. 67
In addition to cutting off access by civilians in need to life-saving humanitarian assistance, the lack of humanitarian access also has put a halt to the critically important independent on-site monitoring of conditions in these areas, including regarding the human rights situation, by the UN and OSCE. The unarmed civilian OSCE Special Monitoring Mission in Ukraine, which had operated since 21 March 2014 based a request from the Government of Ukraine and a consensus decision by all OSCE states, including the Russian Federation, was compelled to close permanently on 31 March 2022. 68 The United Nations Human Rights Monitoring Mission in Ukraine has no physical access to the areas of Ukraine occupied by the Russian Federation, so can only monitor remotely the human rights situation in these areas, leading to significant information gaps and under-reporting. For instance, the UN cautions that the number of civilian casualties it reports (21,293, including 8,006 killed and 13,287 persons injured, in the first year of the war), ‘represents only a fraction of the actual toll, as the verification process has faced immense challenges, including a lack of access to areas under the military control of the Russian Federation.’ 69
3- The Right to a Safe, Voluntary, and Durable Solution to Displacement
To be forced to flee one’s home is a life-changing, often traumatic, experience which is meant to be temporary. The UN Guiding Principles on Internal Displacement prescribe that ‘displacement shall last no longer than required by the circumstances.’ 70 In a situation of armed conflict, whether international or non-international, it is a rule of customary international law that ‘[d]isplaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist.’ 71 Voluntary return of IDPs and refugees is a principle reaffirmed in many peace agreements and countless UN Security Council resolutions. 72 Indeed, when discussing displacement solutions there is a general tendency, both in common parlance and in peace agreements, to emphasize, often exclusively, the solution of ‘voluntary return’.
While the qualifier ‘voluntary’ connotes that return should be a choice, overemphasis of the principle of ‘voluntary return’ can be problematic in practice by making it more difficult for displaced persons to exercise their right to choose other possible solutions, to which they also have a right. Epitomizing this risk, the Dayton Peace Accord ending the conflict in Bosnia and Herzegovina in 1995 gave prominence to refugees’ and IDPs’ right to return. Driving this emphasis were strong moral and political imperatives for the Government as well as the international community, and shared by many displaced persons themselves, to reverse the war’s brutal campaign of ‘ethnic cleansing’ and the resulting dramatic demographic changes in disputed territories. The Agreement stressed many times not only the right of refugees and IDPs to return but the urgency of their doing so, even underscoring that ‘[t]he early return of refugees and displaced persons is an important objective of the settlement of the conflict’. 73 However, for many years it remained very challenging for IDPs to pursue a solution other than return to their pre-war residence: under national legislation, even their recognition as an IDP, their access to reintegration assistance, and their ability to repossess their home and property effectively was contingent upon their expressing an intention to return. 74 It was fifteen years after the war had ended, and only after intensive international advocacy and support, before the Government adopted a Revised Strategy for Implementation of Annex VII of the Dayton Peace Agreement which explicitly recognized for the first time IDPs’ right not only to return but, should they choose, instead to locally integrate in their place of displacement or resettle elsewhere in the country. 75
International law prescribes solutions to displacement can take any one of three forms: return to the place of origin; local integration in the location of stay during displacement; or resettlement elsewhere, in another part of the country in the case of IDPs. 76 IDPs have the right to choose among these solutions while ‘[c]ompetent authorities have the primary duty to establish conditions, as well as provide the means, which allow IDPs to return voluntarily, in safety and with dignity to their homes or places of habitual residence, or to resettle voluntarily in another part of the country’. 77 The Council of Europe’s Committee of Ministers explicitly recognizes the right of IDPs ‘to return voluntarily, in safety and dignity, to their homes or places of habitual residence or to resettle in another part of the country in accordance with the European Convention on Human Rights.’ 78
A critically important corollary principle to that of voluntary return is the right of IDPs and refugees ‘to be protected against forcible return or resettlement in any place where their life, safety, liberty and/or health would be at risk.’ 79 This is the principle of non-refoulement which, in addition to being articulated in international refugee law 80 and having deep roots in international human rights law, 81 particularly in the protections relating to torture, constitutes a principle of customary international law. 82 This principle explicitly is reaffirmed by the Council of Europe, with reference to the European Convention on Human Rights. 83 In Ukraine, the national IDP law explicitly protects IDPs from involuntary return. 84
Another key element of the voluntary character of solutions to displacement is that IDPs and refugees have access to objective and updated information on the conditions in prospective areas of return or resettlement. 85 Such information should cover issues including security and economic conditions as well as the availability of public services and infrastructure, including education and health services. A valuable first-hand source of such information often comes from preliminary brief visits, so-called ‘go and see visits’, undertaken by members of IDPs’ or refugees’ family or trusted community representatives, to these areas. The Council of Europe emphasizes that IDPs ‘should be properly informed, but also consulted to the extent possible, in respect of any decision affecting their situation prior to, during or after their displacement’. 86
Whichever solution option IDPs choose—whether to return to their place of origin, locally integrate in the place of displacement, or resettle in another part of the country—it must be sustainable to be considered a solution. As noted above, competent authorities have the ‘primary duty to establish conditions, as well as provide the means’, enabling IDPs to exercise their choice of solution in the country. Moreover, ‘[s]uch authorities shall endeavour to facilitate the reintegration’ of IDPs, irrespective of the solution they choose. 87 Reaffirming this principle, Council of Europe member states are expected to ensure ‘conditions for proper and sustainable integration’ of IDPs. 88
International guidance and criteria define what constitutes a durable solution to internal displacement. 89 In summary, IDPs who have achieved a durable solution will enjoy without discrimination: (1) long-term safety, security, and freedom of movement; (2) an adequate standard of living including, at a minimum, access to adequate food, water, housing, health care and basic education; (3) access to employment and livelihoods; and (4) access to effective mechanisms that restore their housing, land, and property or provide them with compensation. In addition to these four essential criteria, and depending on the context and whether these are challenges that IDPs face, the following four additional criteria also may be relevant: (5) access to and replacement of personal and other official documentation; (6) voluntary reunification with family members separated during displacement; (7) participation in public affairs at all levels on an equal basis with the resident population; 90 and (8) effective remedies for displacement-related violations, including access to justice, reparations, and information about the causes of violations.
Achieving durable solutions to displacement through fulfillment of these criteria inevitably will, the guidance emphasizes, be ‘a gradual, often long-term process of reducing displacement-specific needs and ensuring the enjoying of human rights without discrimination’ and be ‘a complex process that addresses human rights, humanitarian, development, reconstruction and peace-building challenges’. In other words, the physical act of IDPs returning, resettling in another part of the country, or choosing to settle permanently in the location where they have been living while displaced is literally just the first step towards a solution to displacement. In addition to reconstruction and reintegration support, sustained objective monitoring of the security and other conditions in areas of return, local integration, and resettlement, will be essential.
In the case of Ukraine, as of February 2023, most people displaced by the war—some 77 percent of those who became refugees outside of the country and 79 percent of IDPs in Ukraine—report they want to return home one day. 91 However, this is not an immediate plan: only 12 percent plan to do so in the next three months. Given the ongoing conflict, it is not surprising that safety and security concerns constitute the main barrier to return. Even once hostilities eventually cease, landmines and unexploded ordnance will continue to pose a significant risk to people’s safety and impediment to return, especially for people from areas that experienced active hostilities. 92 Access to housing—much of which has been significantly damaged or destroyed by the conflict—is another major obstacle. Other concerns cited include the availability of basic services, including electricity, water and healthcare, and access to work opportunities. Meanwhile, seven percent of IDPs already indicate that they do not hope or plan to return to their places of origin. 93 Instead, they plan to locally integrate in the place where they are staying while displaced or to resettle and integrate in another part of the country. As noted above, they have the right to do so and to receive support for alternative solutions to return.
Irrespective of the solution they choose, IDPs and refugees have the right to repossess their housing, land, and property, left behind during their displacement. 94 That the property rights of displaced persons must be respected constitutes a norm of customary international law applicable in both international and non-international armed conflicts. 95 In Ukraine, some IDPs and refugees who already have returned to their place of habitual residence are arriving only to find their homes illegally occupied by other persons. 96 This situation, as experience around the world underscores, can become an additional source of conflict and violence unless judiciously handled. An effective mechanism to adjudicate property claims will need to be established and operate in line with international principles and guidance on the issue. 97 A key principle is that restitution should be the primary remedy unless it is practically impossible or the refugee’s or IDP’s expressed wish to receive compensation in lieu of restitution. Any eventual peace agreement for the conflict in Ukraine should refer to IDPs’ and refugees’ right to restitution of their housing, land, and property, specify that this right applies irrespective of the solution to displacement they choose, and provide for the establishment of a credible mechanism for adjudicating disputed property claims.
The Dayton Peace Agreement and the experience in post-war Bosnia and Herzegovina regarding property restitution is particularly instructive and, although not without its challenges, was highly successful and is widely considered a model. Within four years of adoption of the Property Law Implementation Plan in 1999, 92 percent of the more than 200,000 property claims received had been adjudicated and the decisions implemented, allowing IDPs and refugees to regain possession of their homes and land. 98 Even so, many homes (60 percent of the country’s housing stock) were severely damaged or completely destroyed (18 percent). 99 Notably, this destruction not only occurred during the conflict but also after the peace agreement by those seeking to prevent returns. 100 Indeed, many homes of IDPs and refugees were illegally occupied by other people, often displaced persons themselves. Legal restitution of property rights therefore is a first step; practically, reconstruction assistance to support IDPs, refugees and other war-affected civilians to repair and rebuild their homes, and a humane human rights-based approach to remove any secondary occupants, also will be required.
An eventual peace agreement for the conflict in Ukraine should have resolving the challenges raised by displacement as a specific goal and should lay the foundations for enabling IDPs and returning refugees to achieve a voluntary and durable solution to their plight. 101
For the many millions of persons displaced by the war who are still in Ukraine, an end to the conflict is essential for them to find a safe and durable solution to their displacement and begin the difficult task of rebuilding their lives. In the meantime, parties to the conflict must be held accountable for meeting their well-established obligations under international law to protect civilians, to safeguard them from arbitrary displacement, and to ensure that all those who already are displaced in Ukraine receive the protection and assistance they so desperately need. Other countries, meanwhile, must continue to uphold their own responsibilities under international law, namely, to respect the fundamental right of individuals, including IDPs, 102 to seek asylum in another country and the principle of non-refoulement protecting any individual from being returned to a country where their life, safety, or security would be at risk. As the conflict in Ukraine continues to drag on, these fundamental principles will continue to be tested.
- This article and the views it expresses are the author’s, written in her personal capacity.
- United Nations High Commissioner for Refugees (UNHCR), Ukraine Regional Refugee Response Plan and Flash Appeal (UNHCR, April 2022) 2.
- While women and children typically comprise a large majority of displaced persons globally, as men often remain to fight in the conflict or, in natural disasters, to safeguard the home and to care for any livestock, the Government of Ukraine issued a temporary regulation on 24 February 2022 restricting any male citizens aged 18-60 years from leaving the country during martial law. A July 2022 proclamation by the military extended this ban to restricting men of that age from leaving their home districts. Charli Carpenter, ‘Civilian Men Are Trapped in Ukraine: Human Rights and Humanitarian NGOs Should Pay Attention to Kyiv’s Sex-selective Martial Law’ (Foreign Policy, 15 July 2022).
- International Organization for Migration (IOM), ‘One in Six People Internally Displaced in Ukraine’ (IOM, 21 April 2022). By early May 2022, the number of IDPs in Ukraine had surged to over 8 million. IOM, ‘Needs Growing for Over 8 Millions Internally Displaced in Ukraine (IOM, 10 May 2022).
- United Nations Office for the Coordination of Humanitarian Affairs (OCHA), ‘Ukraine: Overview of population displacement (as of 23 March 2015),’ (UNOCHA, 27 March 2015).
- Internal Displacement Monitoring Centre IDMC), ‘Country Profile: Ukraine’ (IDMC, 2022) <www.internal-displacement.org/countries/ukraine> accessed on 14 March 2023.
- UNHCR, ‘Ukraine Situation Flash Update #41’ (UNHCR, 24 February 2023). While UNHCR statistics emphasize the number of refugees from the Ukraine conflict who currently are in Europe, which is where the overwhelming majority are located, significant numbers also are found in other countries, for instance, in Canada and the United States.
- IOM, Ukraine Returns Report (IOM, 23 January 2023).
- IOM, Ukraine Internal Displacement Report: General Population Survey, Round 12 (IOM, 23 January 2023), 1.
- At end September 2022, the number of returnees reported by IOM was at the highest point since the conflict began, totalling an estimated 6,036,000. Four months later, at end January 2023, the number of returnees had dropped by almost half a million, to 5,562,000. IOM, Ukraine Returns Report, (n 7), 2.
- UN IOM, Ukraine Internal Displacement Report, (n 8), 2.
- United Nations, Guiding Principles on Internal Displacement, UN doc. E/CN.4/1998/53/Add.2 (1998) [hereinafter: UN 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 an internationally recognized border.’ UN Guiding Principles on Internal Displacement, Introduction: Scope and Purpose, para. 2. Important to understand is that the definition of ‘internally displaced persons’ is not a legal definition, but a descriptive one. It does not connote or confer a special legal status under international law in the same way that recognition as a ‘refugee’ does. While refugees are, by definition, outside of their country and therefore require a special protected status under international law, IDPs remain in the country of their citizenship or habitual residence, entitled to all the rights and guarantees stemming from this fact. The IDP definition simply describes the factual situation of a person being displaced within their country of habitual residence. See Walter Kälin, Guiding Principles on Internal Displacement: Annotations, Rev. Ed., Studies in Transnational Legal Policy, No. 38 (American Society of International Law and Brookings-Bern Project on Internal Displacement, 2008), 3-4.
- See Kälin (n 12).
- United Nations, General Assembly, World Summit Outcome, UNGA Resolution UN Doc. A/60/L.1 (28 September 2005), para. 132.
- Organization for Security and Cooperation in Europe (OSCE), Ministerial Council, Decision No. 3/03: Action Plan on Improving the Situation of Roma and Sinti Within the OSCE Area, MC.DC/3/03, Annex, Chapter VII; and Decision 4/03 on Tolerance and Non-Discrimination, para. 13, adopted at the OSCE Ministerial Council Meeting in Maastricht, 1-2 December 2003.
- Council of Europe, Committee of Ministers, Recommendation (2006)6 of the Committee of Ministers to member states on internally displaced persons, adopted by the Committee of Ministers on 5 April 2006 at the 961st meeting of the Ministers’ Deputies [hereinafter CoE CoM Rec (2006)6], Preamble and para. 1.
- Government of Ukraine, Law No. 1706-VII, on Ensuring the Rights and Freedoms of Internally Displaced Persons, adopted on 20 October 204 [hereinafter: Ukraine Law on Ensuring the Rights and Freedoms of Internally Displaced Persons].
- CoE CoM Rec. 2006(6), Preamble.
- Guiding Principles on Internal Displacement, Principle 6(2)(b).
- Rule 129A. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Law, Volume I: Rules (International Committee of the Red Cross and Cambridge University Press, 2005), 457-459.
- Geneva Convention IV Relative to the Protection of Civilians in Time of War (1949) [hereinafter Fourth Geneva Convention], Article 49; Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts [hereinafter Fourth Geneva Convention Additional Protocol I], Article 85(2)
- Statute of the International Criminal Court [hereinafter, ICC Statute], Article 8(2)(b)(VIII).
- 1977 Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [hereinafter Fourth Geneva Convention Additional ProtocoI I], Art. 17(1).
- Rule 129B. See Henckaerts and Doswald-Beck (n 20), 459-460.
- ‘[O]rdering the displacement of civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand’ constitutes a war crime in non-international armed conflicts’ is a crime pursuant to ICC Statute, Article 8(2)(e)(viii).
- Rule 130. See Henckaerts and Doswald-Beck (n 20), 462-463; ICC Statute, Article 8(2)(b)(VIII)
- Fourth Geneva Convention, Article 49(2); Additional Protocol II, Article 17 (1); and UN Guiding Principles on Internal Displacement, Principle 6(2)(b). See also Henckaerts and Doswald-Beck, (n 20), 460-461.
- Fourth Geneva Convention, Article 45(4). See also Henckaerts and Doswald-Beck, (n 20), 461.
- Fourth Geneva Convention, Article 49.
- Fourth Geneva Convention Additional Protocol II, Article 17(2).
- Rule 131; Fourth Geneva Convention, Article 49, para. 3; Fourth Geneva Convention Additional Protocol II, Article 17(1). See also Henckaerts and Doswald-Beck, (n 20), 461.
- Guiding Principles on Internal Displacement, Principle 8. See also Kälin (n 12), 41-42.
- Jean-Philippe Lavoyer, ‘Refugees and Internally Displaced Persons: International Humanitarian Role and the Role of the ICRC,’ (1995), 35 International Review of the Red Cross, 162, 170.
- Guiding Principles on Internal Displacement, Principle 5.
- Guiding Principles on Internal Displacement, Principle 6(2)(a).
- ICC Statute, Article 6.
- Convention on the Prevention and Punishment of the Crime of Genocide (1948), adopted by UN General Assembly Resolution 260A(III), on 9 December 1948, Article II(e). See also ICC Statute, Article 6.
- Yonah Diamond et al, An Independent Legal Analysis of the Russian Federation’s Breaches of the Genocide Convention in Ukraine and the Duty to Prevent (New Lines Institute for Strategy and Policy and the Raoul Wallenberg Centre for Human Rights, May 2022), 3, 34-35. More than 33 international legal scholars contributed to and co-signed the report.
- International Criminal Court, ‘Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’ (17 March 2023).
- United Nations, Report of the Independent International Commission of Inquiry on Ukraine, UN doc. A/HRC/52/62 (15 March 2023), 98.
- Guiding Principles on Internal Displacement, Principle 1(1).
- CoE CoM, Rec.(2006)6, para. 2. See also Kälin (n 12), 13.
- Guiding Principles on Internal Displacement, Principle 17.
- Guiding Principles on Internal Displacement, Principle 16.
- CoE CoM, Rec.(2006)6, para. 6, with explicit reference to Article 8 of the ECHR.
- United Nations, Inter-Agency Standing Committee (IASC) Framework on Durable Solutions for Internally Displaced Persons (UN IASC and Brookings Institution-University of Bern Project on Internal Displacement, 2010), 40.
- Guiding Principles on Internal Displacement, Principle 20.
- CoE CoM, para. 7.
- IASC Framework on Durable Solutions for Internally Displaced Persons, 39.
- Guiding Principles on Internal Displacement, Principle 3(1). See also CoE CoM Rec.2006(6), Preamble.
- Guiding Principles on Internal Displacement, Principles 25 and 26. For the standards of international law from which these principles are derived, see Kälin (n 12), 114-121.
- CoE CoM Rec.2006(6), para. 4.
- Erin Mooney, Yevgen Gerasymenko, Olga Morkova, and Sergiy Zayets, Enhancing the National Legal Framework in Ukraine for Protecting the Human Rights of Internally Displaced Persons (Council of Europe, 2016).
- Mooney et. al. (n 54).
- See, for instance, ‘The Regional Forum ‘Human Rights of Internally Displaced Persons: National and Regional Responses’ hosted by the Dnipropetrovsk Regional State Administration was successfully held in Dnipro on 14 and 15 July 2016,’ (20 July 2016) <www.coe.int/en/kyiv/web/news-event> accessed 15 March 2023.
- Council of Europe, ‘A new specialised course and a series of workshops on the judicial protection of IDPs and war-affected people for judges in Ukraine,’ (2 June 2022) <www.coe.int> accessed 15 March 2023.
- See, for example, United Nations, Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons, Mr. Chaloka Beyani: Mission to Ukraine, UN Doc. A/HRC/29/34/Add.3 (2 April 2015); Erin Mooney, Enhancing the National Response to Internal Displacement: A Guide to Good Practices by Council of Europe Member States, Manual developed for the Government of Ukraine under the Framework of the Council of Europe Action Plan for Ukraine 2015–2017 (Council of Europe, 2017).
- Ukraine Law on Ensuring Rights and Freedoms of Internally Displaced Persons, Article 18, paras 2-4. Also relevant is the general Law on Humanitarian Aid. See Mooney et. al. (n 63), 190-193.
- For 2023, the Government of Ukraine and the United Nations jointly have appealed for US $3.9 billion to enable 652 humanitarian organizations (local and international) to provide humanitarian assistance and protection services to 11.1 million people most in humanitarian need. Of these, 3.8 million are IDPs and 2.5 million are displaced people who recently have returned to their home area. United Nations, 2023 Humanitarian Response Plan: Ukraine (UN, February 2023).
- An analogous situation arises in Georgia, where the Government has not had effective control of the territories of Abkhazia and South Ossetia/Tskhinvali since the outbreak of war in these regions in the early 1990s. See Erin Mooney, ‘From Solidarity to Solutions: The Government Response to Internal Displacement in Georgia,’ in Elizabeth Ferris, Erin Mooney and Chareen Stark, From Responsibility to Response: Assessing National Approaches to Internal Displacement (Brookings Institution – London School of Economics Project on Internal Displacement, November 2011), 228-229. In 2021, the European Court of Human Rights (ECHR) determined that the Russian Federation exercised ‘effective control’ over South Ossetia, Abkhazia and the ‘buffer zone’ from 12 August to 10 October 2008, the date of the official withdrawal of the Russian troops and that ‘[e]ven after that period, the strong Russian presence and the South Ossetian and Abkhazian authorities’ dependency on the Russian Federation, on whom their survival depends, as is shown particularly by the cooperation and assistance agreements signed with the latter, indicate that there was continued ‘effective control’ over South Ossetia and Abkhazia.’ Georgia v. Russia (II), (ECHR, 29 January 2021).
- United Nations, Office for the Coordination of Humanitarian Affairs, Situation Report: Ukraine (UNOCHA, 10 February 2023), 7.
- ‘Ukraine One Year On: NGOs Call for the Protection of Civilians, Humanitarian Access, Localisation and Durable Solutions’ (23 February 2023) 1, accessed 21 March 2023 <www.nrc.no/globalassets/pdf/ukraine-one-year-on-awg-statement-22.02.pdf.
- United Nations, Security Council, 9254th Meeting, 6 February 2023, Provisional Verbatim Record (6 February 2023) 5.
- Rule 55. See Henckaerts and Doswald-Beck, (n 20), 193-200.
- ICC Statute, Article 7. See also ibid., 195.
- OSCE, ‘OSCE Special Monitoring Mission to Ukraine (closed),’ accessed 15 March 2023 <www.osce.org/special-monitoring-mission-to-ukraine-closed>.
- United Nations, Situation Report: Ukraine, op. cit., 3.
- Guiding Principles on Internal Displacement, Principle 6(3).
- Rule 132. See Henckaerts and Doswald-Beck, (n 20), 468-472.
- Kälin (n 12), 127-129. See also Christine Bell, Negotiating Justice? Human Rights and Peace Agreements (International Council on Human Rights Policy, 2006), 65-68; and Patricia Weiss Fagan, ‘Peace Processes and IDP Solutions’ (2009) 28 Refugee Survey Quarterly 1, 31-58.
- The General Framework Agreement for Peace in Bosnia and Herzegovina, initialled in Dayton on 21 November 1995 and signed in Paris on 14 December 1995, Annex 7: Agreement on Refugees and Displaced Persons, Article 1.1.
- Erin Mooney and Naveed Hussain, ‘Unfinished business: UNHCR and IDPs in Bosnia and Herzegovina’ (2009) 33 Forced Migration Review, 22-24.
- Guiding Principles on Internal Displacement, Principle 28(1). See also Kälin (n 12), 125-130. For refugees, resettlement refers to relocating to a third country. Solutions for refugees other than return ie, solutions in countries of asylum or resettlement fall outside the scope of this paper.
- Guiding Principles on Internal Displacement, Principle 28(1).
- CoE, CoM Rec.(2006)6, para. 12.
- Guiding Principles on Internal Displacement, Principle 15(d).
- Convention on the Status of Refugees (1951), Art. 33.
- United Nations, Office of the High Commissioner for Human Rights, Technical Note: The Principle of Non-Refoulement in International Human Rights Law (5 July 2018).
- Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion,’ in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Erika Feller, Volker Türk and Frances Nicholson (eds.) (Cambridge University Press, 2003), 87-177. That non-refoulement constitutes a principle of customary international law was confirmed by consensus by a roundtable of international law experts, convened in July 2001. See, ibid., 178-179.
- CoE, CoM Rec.(2006)6, para. 5.
- Ukraine Law on ensuring rights and freedoms of internally displaced persons, Art. 3.
- UN IASC Framework for Durable Solutions for Internally Dispalced Persons, 15-17.
- CoE, CoM Rec.(2006)6, para. 11.
- Guiding Principles on Internal Displacement, Principle 28(1).
- CoE CoM Rec.(2006)6, para. 12.
- IASC Framework on Durable Solutions for Internally Displaced Persons.
- IDPs also have this right during displacement. UN GP, Principle 22(1)(d). However, legal and practical obstacles often arise impeding IDPs’ ability to participate in elections, requiring targeted measures. See Jeremy Grace and Erin Mooney, ‘Political Participation Rights in Particular the Right to Vote,’ in Walter Kälin, Rhodri C. Williams, Khalid Koser and Andrew Solomon (eds.), Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges, Studies in Transnational Legal Policy 41 (ASIL: 201), 507-550. Specifically regarding Ukraine, see Mooney et. al, (n 54), 131-138, and L D Rudenko and O O Androsova, ‘Ensuring the Voting Rights of Internally Displaced Persons in Local Elections’ (2017), 2 Legal Horizons 15.
- UNHCR, Lives on Hold: Intentions and Perspectives of Internally Displaced Persons in Ukraine (UNHCR: February 2023), 4; Lives on Hold: Intentions and Perspectives of Refugees from Ukraine (UNHCR: February 2023), 4.
- IOM, Ukraine Returns Report, 6.
- UNHCR, Lives on Hold: Intentions and Perspectives of Internally Displaced Persons in Ukraine, 4.
- Guiding Principles on Internal Displacement, Principle 29(2). See also Kälin (n 12), 131-140; and CoE CoM Rec. (2006)6, para. 8.
- Rule 133. See Henckaerts and Doswald-Beck (n 20), 472-474.
- IOM, Ukraine Returns Report, 6.
- United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (the Pinheiro Principles), UN doc. E/CN.4/Sub.2/2005/17 28 June 2005; and Handbook on Housing and Property Restitution for Refugees and Displaced Persons: Implementing the ‘Pinheiro Principles’ (United Nations, March 2007).
- Bosnia and Herzegovina, Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) End of Mandate Report (1996-2003), cited in Immaculada Serrano, ‘Property rights and reconstruction in the Bosnian return process,’ Forced Migration Review, 50 (September 2015), 19.
- Erin Mooney, ‘Internally Displaced Persons and Refugees,’ Options Paper (September 2022), Ukraine Peace Settlement Project, University of Cambridge, Lauterpacht Research Centre for International Law <www.lcil.cam.ac.uk/researchcollaborative-projects-housed-lcilukraine-peace-settlement-project/settlement-options > accessed 15 March 2023.
- Guiding Principles on Internal Displacement, Principle 15(c).
Erin Mooney, The Displacement Crisis in Ukraine: Key Legal Issues, Jun 2023,
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