[The summaries of papers presented at the Dialogue are listed below an alphabetical order as per author’s surnames.]

Humanitarian Aspects of Borders in the East and Northeast by Paula Banerjee

The present state system in South Asia, in particular the state system of the sub-continent, is a result largely of the partitions in the eastern and western parts of the erstwhile united India, giving birth to three states – India, Pakistan, and Bangladesh. The borders dividing these countries are markers of past bitter history, current separate, distinct, and independent existence, and the sign of the territorial integrity of these states. The bitterness of the past, the lack of mutual confidence at present, the security concerns of all these states, at the same time the existence of thousand and one linkages make the South Asian borders unique. They are the lines of hatred, disunity, informal connections and voluminous informal trade, securitised and militarised lines, heavy para-military presence, communal discord, humanitarian crisis, human rights abuses, and enormous suspicion, yet informal cooperation. 

While the Indo-Pakistan border and the Line of Control are in the eye of world attention, therefore closely monitored, the border in the East – Indo-Bangladesh border and Indo-Nepal open border – remains neglected in terms of attention. Security concerns overwhelm all other equally legitimate concerns and values. Regarding Indo-Bangladesh border military security dominates over human security in the border region. As a result of this, States often forget that borders are not only lines to be guarded, they are also lines of humanitarian management, because borders are not lines but borderlands – that is to say these are areas where people live, pursue economic activities, and lead civilian lives attuned to the realities of the borders. Human security in the borderlands would mean first security of the civilian population along the borderlines. But that never happens. The Indo-Nepal border is also of concern for security wallahs on both sides who feel that unwanted elements including migrating hoards are encroaching through these borders. 

Two of the most important threats faced by these borderlands in the security perception is the threat of trafficking and AIDS.  Newspaper reports from the borderlands are rife with news of human trafficking along the border. India was also marked as the destination for sex tourism from Europe and United States.  These reports portray that human trafficking is a thriving proposition and there are a number of routes through which women and children are trafficked into and out of this region. Through these routes in the Northeast women from Nepal, Burma, Bangladesh, the Northeast itself and Bengal are seduced, coerced or forced into flesh trade and trafficked.  This is both a procurement area and a transit area.  

To find out why this whole region is vulnerable to traffickers one needs to realize that this is a region of endemic poverty, social imbalance and political violence, particularly against vulnerable groups—of whom women form a large part.  Each part of this region is undergoing certain social and political turmoil where more and more women are getting marginalized. In Bangladesh, for example, effects of globalisation, growth of fundamentalism, modernisation policies such as building of dams etc. have all contributed to violence against ethnic and religious minorities, and against women. Of course, minority women are in a double bind.  They are attacked both as minorities and as women. The fundamentalists who have increased their control in the political arena strive to maintain a predominantly male-dominant status quo.  This strategy puts both minorities and women in general in the receiving end. Religion has come to be used by fundamentalist groups as one of the primary means by which male-dominant values and existing gender-oppressive ideology are imposed and perpetuated. 

There are cases where women who are brought from Bangladesh to the metropolitan towns in India face tremendous brutality.  Women who are trying to cross the border are extremely vulnerable, which is increased by their status of being foreign born. No one is willing to shoulder any responsibility for these women.  The state that they leave is glad to get rid of them and the state that they enter finds them unwanted. In such a situation woman can be exploited by anyone and are therefore particularly vulnerable to traffickers.  These women have very few options to improve their situations. Their problems are compounded by increased militarisation and criminalisation of the area. Here every other day women and children are molested or killed. Women living in these borders live a life of extreme hardship.  They are the quickest targets for both the security personnel and the criminals. Any study on traditional security pays no attention to such insecurities, which has become part of their every day lives. 

Not just from Bangladesh but women from Nepal also cross borders and move to India. There are many reasons why these women migrate. Political instability in Nepal has compounded the problem. A very disturbing phenomena within this process is that young Nepali “virgins” are trafficked because people not only prefer their fairer complexion but also there is a ridiculous but common belief among some communities that having intercourse with a young girl can cure many sexually transmitted diseases as well as AIDS.  These young girls living in brothels are so powerless that they can hardly insist that their clients use safety measures.  Once they contract the disease they inadvertently infect many more and contribute to destabilization and insecurity of the whole region.  Trafficking finds little space in traditional security discourse yet it is one mode of migration that actually leads to physical insecurity of a region.   

The border area is looked upon as a site of pervasive threats.  If it is not the threat of security, migration or terrorism then there is AIDS, a seemingly insurmountable threat to collective health.  And the site of that threat remains the border, whether it is with Bangladesh or with Nepal or even with Myanmar.  That the female sex workers are one of easiest target is clear from a number of media report.  There is a plethora of reports that clearly blames female sex workers for the spread of HIV/AIDS in Northeast India.   

In recent years there is a new threat perception arising out of the flesh trade.  This relates to the security forces and their vulnerability to AIDS. Hitherto these security forces were considered invincible and they were the instrument for controlling malaise of the borders but now they are themselves falling prey to AIDS. From different parts of northeast there is a recurring concern that AIDS is the most important threat to security as it is affecting security forces themselves. There is a witch hunt for AIDS patient.  At the receiving end of this witch hunt are gay men, women sex workers or migrant workers.

If the situation of the borders is to be improved these threats need to be addressed. 

Climate Change, Environmental Refugees and Future Conflicts Pattern in South Asia: Ominous Portents by Subir Bhaumik 

The world faces a huge threat to its future from increasing global warming, rising population levels and fast rising energy demand in the wake of speedy industrialisation. Schwartz and Randal argue that the adverse climate change scenario could potentially de-stabilize geo-political environments, leading to skirmishes, battles, and even war due to resource constraints. Adverse climate change has often caused severe catastrophes before. This paper will try to examine the current projections of adverse climate change as a result of global warming and the way it would impact on migration patterns and future conflicts of South Asia, which is one of the world’s heavily populated regions with a high level of poverty. 

The Intergovernmental Panel on Climate Change (IPCC) in their Third Assessment Report (TAR) 2001 emphasised the linkages between global environmental issues and the challenge of meeting key human needs such as adequate food, clean water, clean air and adequate and affordable energy services. The IPCC Fourth Annual Report, 2007, stated that it is 90 percent certain that mankind is responsible for rising global temperatures. At continental, regional, and ocean basin scales, numerous long-term changes in climate have been observed. These include changes in Arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, wind patterns and aspects of extreme weather including droughts, heavy precipitation, heat waves and the intensity of tropical cyclones. 

Given the possibilities for conflict created by the above changes in the global climate, whether it is over petroleum, uranium, refugee flows, fresh water or food, it becomes apparent that in South Asia, given its high population levels and the endemic poverty, the possibilities for conflict are overwhelming. Glaciers in the Himalayas from which much of South Asia obtains its water supplies are retreating. The Himalayan glaciers supply the water to the Ganges, Indus, Brahmaputra, Mekong, Yangtze and Yellow rivers. Any disruption of water supply in these rivers could have serious consequences for the region. The predicted increase in extreme weather including higher temperatures, changing patterns of precipitation coupled with increasing domestic and agricultural use of water is a recipe for disaster. 

The Intergovernmental Panel on Climate Change (IPCC), in its provisional 2007 report, detailed a frightening future scenario for South Asia. In some parts of South Asia, like the Sundarbans delta, the impact of climate change has been felt by residents much before the world started talking about it in a big way. The Sunderban Islands are home to more than four million people who live in the high risk zone of cyclone and storm surges. According to Prof Hazra, the rate of sea level rising is currently approaching 3.14 mm per year near Sagar Island and this could increase to 3.5 mm in the next few years due to global warming. The world has finally woken up to the threat of climate change, but the true enormity of the future crisis it will cause in South Asia has not yet fully dawned on the governments and the peoples of this rather highly populated region.  

The Intergovernmental Panel on Climate Change in its Fourth Assessment report provided specific information for the South Asia region concerning the nature of future impacts. Some of the future manifestations of climate change in South Asia are listed below: 

• Glacier melting in the Himalayas is projected to increase flooding and will affect water resources within the next two to three decades.
• Climate change will compound the pressures on natural resources and the environment due to rapid urbanisation, industrialisation, and economic development.
•Crop yields could decrease up to 30% in South Asia by the mid-21st century.
• Mortality due to diarrhea primarily associated with floods and droughts will rise in South Asia.
• Sea-level rise will exacerbate inundation, storm surge, erosion and other coastal hazards. 

The impact of such environmental change in South Asia’s would include:

• decreased water availability and water quality in many arid and semiarid regions
• an increased risk of floods and droughts in many regions
• reduction in water regulation in mountain habitats
• decreases in reliability of hydropower and biomass production
• increased incidence of waterborne diseases such as malaria, dengue, and cholera
• increased damages and deaths caused by extreme weather events
• decreased agricultural productivity
• adverse impacts on fisheries
• adverse effects on many ecological systems

As a result of these changes, climate change could hamper the achievement of many of the Millennium Development Goals (MDGs), including those on poverty eradication, child mortality, malaria, and other diseases, and environmental sustainability. Much of this damage would come in the form of severe economic shocks. In addition, the impacts of climate change will exacerbate existing social and environmental problems and lead to migration within and across national borders.

Climate change is clearly not just an environmental issue but one with severe socioeconomic implications in South Asia. Some have already realised the dangerous consequences of climate change on countries such as Bangladesh. The Bangladesh government itself has launched an action plan to fight climate change that prioritizes adaptation and reduction of disaster risks, also addresses low carbon development, mitigation, technology transfer, and the provision of adequate finance. This is one example about the growing awareness about the possible fallout of adverse climate change in South Asia.

Focussing on migration patterns that will result from adverse climate change in South Asia – and the kind of conflicts it will possibly cause, this paper  argues that (a) illegal migration would increase from Bangladesh to India – and within India from coastal to inland regions and within inland regions depending on resource scarcity and availability  -- due to the impact of climate change (b) the increase in migration would not only exacerbate existing ethnic and religious conflicts, like the one already witnessed in Assam , but the conflicts will also spread to other regions of South Asia  (c) the conflicts will focus more directly on resources such as control of fertile lands and water resources (d) they will seriously undermine government control and weaken governance in large parts of the region.

Development Projects, Internal Displacement and the Need for New Policies and Practices for the protection of Victims by Samir Kumar Das

This brief note makes a study of four different cases of displacement induced by the commissioning (and as in one case the threat of it caused by the proposed commissioning) of development projects in India since independence and argues that with the breakdown of nationalist consensus particularly since the late 1980s, displacement has slowly emerged as a public issue, although state’s responses in terms of actual protection of the internally displaced persons hardly challenge the dominant development discourse that lies at the root of it and continue to be shaped and influenced by the older notions of sovereignty. The following are the four cases that this paper looks at:

The Bhakra dam

Kuduremukh

POSCO

Riverbank erosion and displacement in Malda

The R & R Act

For many, rehabilitation as guaranteed by ‘The Rehabilitation and Resettlement Act’ (2007) is only an adjunct to development – meant basically for assuaging the concerns of the displaced persons albeit in a piecemeal way without making any attempt at revisiting the very model of development. The Act, a gradual outcome of a series of draft policies formulated by the Government of India particularly since the 1980s not only took years to come into effect but has ‘watered down’ the international human rights and humanitarian law. At no point, is the right against displacement viewed as a value in itself – a reason good enough for scrapping development projects that induce mass displacement and doing away with the presently followed development strategies – although it does talk about compensation in case one is affected by them. While non-displacing or least-displacing alternatives need to be explored as per its provisions, there is absolutely no guarantee that development projects might be scrapped if alternatives could not be found. In short, protection against displacement is never viewed from a rights-based perspective by the Government. More importantly, the land requiring agency is made only partially accountable in the sense that it would get permission under this Act and is to bear the cost of compensation. But it does not make proper rehabilitation a precondition for sanctioning the development project in the first place.  

As a result, the law never confers recognition on what we consider as people’s inalienable right to home. This consent is only limited to the question of rehabilitation, which in most cases, the Government has expressly made the only issue for discussion. Development policy is placed above any kind of democratic auditing and scrutiny. Insofar as dialogues and deliberations as democratic processes are cast off from the development discourse, the state is seen to resort increasingly to violence and coercion in order to get it across the general public. It seems that the policies of both the Centre and the states in India are only part of the larger developmentalist discourse that has overwhelmed the Indian state, particularly in the wake of globalisation.  

Lessons We Must Learn 

1.      The nationalist discourse has lost much of its sheen during over 60 years of India’s independence. With the steady erosion of what is popularly called ‘developmentality’, that is to say, a consensus on national development, it is no longer possible for the countries of South Asia to rule their people with the ‘seduction’ of development discourse. The choice has become exclusive and the displaced persons prefer their own relief and rehabilitation to the promise of developing the nation defined as a distant and abstract body. 

2.      Yet, ‘development’, as we have seen, continues to pertain to the whole – the Indian nation and the nation as a collective body is not only held as sovereign but also situated over and above the otherwise operative democratic institutions and processes. Sovereignty is the constitutive principle that cannot get constituted by any other force. Almost as a corollary to it, one may also add that sovereignty articulates itself not so much around any loosely defined and heterogeneous groups of people but a people constituted as a determinate body, a finite collectivity, a clearly identifiable and governable nation. Sovereign power therefore manifests itself through the art of governing the people and ‘producing’ this nation. The discharge of responsibility calls for a dialogue. Popular sovereignty in this context consists in democratic redistribution of the responsibility to develop so that only the vulnerable sections are not called upon to bear its brunt.  

3.      In our instance, the international community can act more as a facilitator than as a direct actor arrogating to itself the monopoly responsibility to protect. The movements and struggles of the IDPs ought to be recognised while discharging this responsibility. In Orissa and Malda for example, the victims have been far from passive. Even in extreme situations they do exercise agency. The international community must not be seen as one harbouring interest in tinkering with national sovereignty.   

4.      Sovereignty defined in terms of responsibility will also compel us to revisit and redefine our hitherto followed models of development. For, sovereign responsibilities cannot be discharged in a world where most IDPs voice their right against development. Sovereign responsibility implies redefining development in a way that right against displacement gets transformed into a right to development for the IDPs as well. Never before in the postcolonial history of India have sovereign responsibility and the dominant development paradigm being pursued now become so blatantly incompatible with each other.                    

5.      Way back in the late 1990s, two of us at CRG suggested a typology of internal displacement in the South Asian context and argued in favour of adopting a more nuanced and intricate policy that would take care of the distinctiveness of each of these types. While the Rehabilitation and Resettlement Act of 2007 is exclusively focused on development-related IDPs, ICRC position paper of May 2006 is confined only to the issue of conflict-related displacement.  The Communal Violence Bill tabled in Indian Parliament in 2008 similarly deals exclusively with victims of communal violence and riots. The new millennium seems to have marked a change in the nature of developmentally induced displacement. Perhaps a time has come when we need to understand that real-life situations seldom resemble any of our ideal types. Similarly such commonplace distinctions made between IDPs and refugees, between ‘forced’ migration and economic migration also lose much of their validity.  

6.      The representative claims of voluntary initiatives, civil society groups, non-governmental organisations (NGOs) also need some reexamination. One has to appreciate the varied and mixed nature of these groups. I can only narrate one significant incident from my field experience, where a local NGO has been working with about forty people who have taken shelter on a newly formed char as their homes and cultivable lands were completely washed away thanks to riverbank erosion in Malda. I got the distinct sense that the NGO was totally alienated from the villagers of this small island although it vows to work with them. It also shows that the movements and struggles of the IDPs have undergone some hitherto unprecedented radicalisation. But radicalisation, as another study of the tribal-dominated Bastar during 1854-1996 shows, marks the state’s ‘acknowledgement of popular right’.         

Refugee Protection in South Asia: Review of the Ad hoc Mechanism and Way Forward by Uttam Kumar Das 

This paper aims to review the mechanism related to refugee protection in South Asia taking Bangladesh and India as case studies.  

International Refugee Law is an emerging branch of International Law. The most important instruments related to refugees are the UN Convention Relating to the Status of Refugees, 1951 (thereafter, 1951 Convention) and its 1967 Protocol. In addition, other human rights instruments including the Universal Declaration of Human Rights (UDHR) 1948 have also supplemented the international legal regime for refugees. The 1951 Convention sets out minimum standards of treatment (for refugees), including the basic rights to which they are entitled, and established the legal and juridical status of a refugee.   

The concept of international protection of refugees has evolved gradually. Now, it involves a series of institutional and legal responses. 

The UN General Assembly through a resolution decided to establish the Office of the United Nations High Commissioner for Refugees (UNHCR). As per Article 1 of the Statute of the Office, the main task of the High Commissioner for Refugees (i.e. UNHCR) is to provide international protection to refugees and to find out and seek durable solutions for them by assisting governments in facilitating the voluntary repatriation of refugees, or their reintegration within new national communities, or resettlement to third countries. These functions are entirely non-political, humanitarian and social. 

Many universally recognised human rights are also directly applicable to the refugees. When the 1951 Convention was adopted, the participating States were concerned to focus mainly on the existing refugee problems, and necessarily not to assume obligations for the future, the extent of which could not be foreseen. It does not protect persons whose socio-economic rights are at risk or the Internally Displaced Persons (IDP) or for the victims of the global warming.  

Given the post-9/11 scenario, most of the developed countries have tightened their borders. By the end of 2004, only two out of top ten receiving countries were developed ones. In this scenario, it is unlikely that South Asian states will accede to the 1951 Convention in near future.  

The States in South Asia have witnessed forced movements of populations within and across the region. States in the region are both refugee generating and hosting ones at the same time. Though the refugee problem is almost a permanent phenomenon in South Asia, none of the States (except Afghanistan) has acceded to the 1951 Convention or it’s 1967 Protocol. States have not developed any domestic legislation to deal with the issue and there is no regional initiative by the States.  

In South Asian States (i.e. Bangladesh, India etc), refugees are subjected to the same laws as applicable for aliens. In the absence of any legal framework, asylum seekers and refugees are dealt with under ad hoc administrative arrangement, which hardly take note of the individual protection needs of them. These arrangements given their very nature could be arbitrary and discriminatory.  

As case studies, following is a brief discussion on the position of international Refugee Law in the domestic legal regime of Bangladesh and India and their implications accordingly. 

Bangladesh 

Bangladesh has been handling the Rohingya refugees without any legal framework. None could say under what authority, about 258,000 Rohingyas were granted ‘refugee status’ by the GOB in 1991. In practice, the GOB has been providing protection against refoulement to those who fled from the country of origins fearing persecutions.

In fact, there is no procedure in place and the GOB has never conducted any refugee status determination (RSD). No national asylum procedure means that, asylum-seekers do not have a scope to approach the GOB for protection related issues.

In the legal context, the Constitution of the People’s Republic of Bangladesh guarantees certain fundamental rights to citizens, as well as to non-citizens, like for eg. the right to life and personal liberty, etc. In Bangladesh, the major laws relevant to refugees are: Foreigners Act, 1946; Registration of Foreigners Act, 1939; Passport Act, 1920; and the Extradition Act, 1974.

As a result of the broad application of domestic legislation controlling the entry and stay of foreigners, many bona fide asylum seekers and refugees may run afoul of the law and be charged with any number of offences. The refugees in Bangladesh do not have the right to acquire, hold, transfer or otherwise dispose of property.  However, children who are for the time being on the territory of Bangladesh, shall have the right to education.   

India

Refugees’ history in India is very much related with the partition in 1947 and has two dimensions. First, the human dimension of partition, which saw the displacement of millions of people, has not received sufficient attention. Secondly, the story of the partition refugees has come to be separated from that of refugee flow to independent India.  

India had and has been hosting refugees from almost all of the countries in the region. However, the State is not a party to the 1951 Convention or the 1967 Protocol. Neither has it adopted any domestic legislation on the issue of refugees.  

Here, the protection of refugees is determined by the available scope in the Constitution of India. Case laws developed through judicial activism also make avenues for the protection of refugees in India.  

Conclusion 

From the preceding discussions, it is unlikely that States like Bangladesh and India would accede to the 1951 Convention in a near future. It is also evident that the current legal regime on refugees in both Bangladesh and India is not conducive to the protection of refugees. Therefore, there is a need to have a comprehensive legislation for the protection of refugees, which among others would ensure a standard and humane treatment.  

In this regard, the Model Refugee Law adopted by the EPG in 2007 could be a foundation. The law should be drafted in such a manner, which would reflect on the basic principles of the 1951 Convention and its 1967 protocol. The law should have provisions, among others, on the definition of refugees, asylum procedure, rights and obligation, status of mixed-mirages, cancellation and cessation processor of refugee status etc. For the harmonisation of the legal standard, the South Asian States should also vie for a egional legal framework on asylum and refugees. SAARC should take lead in this regard.   

Protecting Refugees- Entitlement or Welfare?  by Rajeev Dhavan 

There is an increasing discourse on ‘universalism’ and ‘globalisation’ of human rights. If the universalism is to be celebrated as a virtue, globalization reposes the custodianship of this virtue in whoever claims to fulfil it – whether through the United Nations or otherwise. Both the universalism and globalisation of human rights are rightly contested. We live in troubled times.  Wars are declared for peace. Human wrongs are committed in the name of human rights, which becomes a reason for doing things as well as an excuse for doing or not doing them. Refugee law is no stranger to this dialogue between truth and reality. Refugee creation and refugee protection are both man made – as indeed, the dilemmas they generate. A world that seems to have few qualms about creating refugees also bears the responsibility for ‘protecting’ refugees and finding durable solutions for their future. 

Today we need to take stock of the crises which we ourselves create and seek to rend asunder. Such a stock taking cannot escape being political. We cannot view refugee creation as political and refugee protection as apolitical. If politics creates refugees, the lack of political will as, indeed, the refusal to exercise it – prevents refugee protection from being programmatically sustained. Palestinian refugees are not recognised as such.  Bhutanese refugees in camps in Nepal know that they cannot return to Bhutan with dignity and are destined to disperse into the vast but overcrowded diaspora of the subcontinent. To describe all this as a lack of political will may be a euphemism. Political vengeance, social fears and economic lifestyle protection intrude greatly into the working of refugee law and policy. This results in narrowing the scope of refugee protection and undermining the purpose for which it may have been created. Subject to political pressures and with scarce resources, the UNHCR represents the organisational face of refugee protection. The activities of the UNHCR, bring programmes, policies, perspectives and resources to refugee protection. These have their own place and mean something to the refugees and others who fall within the programmatic dispensation of the UNHCR. No less, the actions and policies of the UNHCR also invite comment and critique – from scholars, publicists and refugees. How much is too much? How much is too little? 

For all this, we need not directly enter into debates over the problematic ‘universalisation’ and ‘globalisation’ of human rights and the divergences that they give rise to. Yet, we cannot wholly ignore these debates.4 Human rights has become a vehicle for many things which are wholly unconnected with human rights or the values underlying them. The rights themselves are couched in compromises to become inchoate ‘bargaining endowments’ on the anvil of law and policy. The globalisation of human rights takes the latter beyond national frontiers into the international unknown. The United Nations has built a network of institutions, processes, procedures, and decision making structures. But the ‘United Nations’ are as united and disunited as they are compelled to be. For its own political reasons, the Cold War maintained an imperfect balance. Nor was that imperfection corrected after the fall of the Soviet Union created a unipolar world. No one can claim the ownership of the world and obviate resistance to this claim. Economic conquest has been facilitated by globalizing treaties such as those creating the World Trade Organization (WTO). But both the UN and its tributaries as well as their globalizing processes are subject to immense strains from the American Empire and its allies.  This necessarily affects UN agencies like the UNHCR which rely on financial support from public and foundation funds; and, draw inspiration from globalising political discourses that rewrite its script from time to time. Each rewriting takes place in the all too familiar universal language of human rights. But, the goals of human rights are not achieved by mere declarations but continuous peoples’ struggles through social action, group solidarity, law making and policy formulation.6 In each case, the victories, if any, may be small. But even a small victory may provide a provisional answer or the beginning of an upward solution of whatever size or proportion.

This paper will look into: 

1. (UN) Convention Design Faults
2. India’s Concerns and Dilemmas
3. Absence of a Legal Framework
4. Looking for a New Framework
5. Refugee Protection : Shift from Entitlements to Relief

Policies and Practices of National Human Rights Commission about IDPs in Nepal by Shiva K Dhungana 

The issues of protection and promotion of rights of IDPs in Nepal was never taken seriously before the birth of the Maoist armed struggle called ‘Peoples' War’ in early 1996, despite existence of large number of IDPs as a result of development projects and natural disasters.

Further, there are more than 50,000 Kamaiyas (bonded-labourers), who were declared free by the government in 2000 and their outstanding family loans with the rich landlords were written off. They were working for generations in the land of the landlords to pay the interest of the intergenerational loan, without being paid the wages. The government promised to provide small parcel of land for their livelihood once they were released but the promise remained a mere 'lip service' and they are fighting for their survival and are organising sit-in protests in Kathmandu until today.

There is no accurate database of IDPs in Nepal. Moreover 'open border' between Nepal and India and age-old practice of seasonal and long-term economic migration, further compound the problem. The UN has estimated around 50,000-70,000 conflict induced IDPs at the end of 2007. However, the Government has registered only 35,000 IDPs till date (UN 2008). Additionally, an unknown but substantial number of Nepalis have been displaced to India through the porous open border. Many of the displaced do not want to reveal themselves as IDPs because of the security vulnerability as well as the social stigma associated with their status as IDPs.  

The UN Guiding Principles on Internal Displacement, 1998 and National Policies on IDPs, 2007 clearly stipulate that "all displaced persons have the right 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", but it is never honored by the conflicting and/or responsible parties. There is a selective 'approval' process practiced by the CPN (M) cadres for the return of the conflict-induced IDPs in many parts of the country.  

Though the UN Guiding Principles on Internal Displacement came into effect in1998 with the unanimous approval of the UN General Assembly, the government authorities in Nepal never paid attention towards the Principles. When pressured by the international community, the Government set aside some funds broadly defining conflict-induced IDPs as those victimised by the rebels only, denying the IDP status to those displaced by the atrocities of the state security forces. The Twelve-Point Agreement signed between the Seven Party Alliance (SPA) and the CPN (M) in November 2005, for the first time, acknowledged the problem of IDPs.  

With increasing pressure from national and international community, the Interim Government developed and adopted a new National Policies on IDPs on April 2007, almost one year after its formation.  

Many human rights organizations/ UN agencies are also working towards addressing the vulnerability of IDPs. To contribute to the safe and sustainable return of the IDPs, UNHCR has been organising and conducting various programmes – with support from OHCHR, OCHA, the National Human Rights Commission, the Norwegian Refugee Council and many other organisations.   

For most of the time during conflict, majority of the conflict-induced IDPs were looked as the enemy of the state authority. The National Policies on IDPs 2007 calls for some specific legislations and implementing mechanisms to protect the rights of IDPs but there are no formal attempts to put such necessary legal provisions in place. Further, it never paid attention towards the existence of large number of IDPs caused by other reasons. The NHRC, established in 2000, developed its Strategic Plan (2008-2010) for the protection, promotion, respect for and fulfillment of human rights of the people of Nepal. The NHRC has identified nine core values of human rights. The values include Accessibility, Accountability, Diversity, Equality and Equity, Impartiality, Independence, Integrity, Participation and Transparency and identified the following major areas of focus:   

·         Ending the culture of impunity:

• Establishment of right to life, liberty and security of the people:
• Establishment of the truth about disappearance, internally displaced persons (IDPs) and victims of conflict and give justice to the survivors and their families:

The Commission has identified seven strategic objectives, the first objective deals with the concerns of IDPs in Nepal. It intends to strengthen the rule of law, culture of human rights and peace to end impunity and the violation of human rights.  

Based on the earlier Plan of Action (2004-08) and the recently approved Strategic Plan (2008-10), the commission is slowly moving towards institutionalising the mechanisms and implementing activities to protect the rights if IDPs in the country.  It established a Focal Point within the Protection and Monitoring Division in the head office in Kathmandu and in all regional offices to pay special attention to the protection and promotion of human rights of IDPs. The IDP Focal Point has been converted into IDP Unit under the Protection and Monitoring Division.  

Despite various policy level efforts made and corresponding activities implemented by the Commission, there are many weaknesses and challenges faced by Commission in effectively and efficiently implementing the protection strategies to address the HR violations of the people in general and IDPs. 

Following are some of the general recommendations to make the Commission further effective in protecting human rights of IDPs/victims: 

The NHRC should revise the section related to IDPs in its strategic plan to make it holistic by including all types of IDPs.
The commission needs to plan and work for expanding its coverage by establishing offices in more districts and geographic regions.
The Commission as well as the IDP Unit should develop a consolidated data management system. 
There is a need for developing a rapid investigation and reporting mechanism. 
The commission should work closely with civil society and NGOs to ruling authority. 
The Commissioners should be highly accountable towards the ethics of care and work independently.

Finally, there is an urgent need for revising the existing NHRC (Complaints, Action and Fixing Compensation) Regulation, 2000 to embrace the spirit of the UN Guiding Principles of Internal Displacement and National Policies on IDPs 2007. Further, there is also need for increasing and specifying the amount of compensation in the guidelines to make it fair compensation of the HR violation of the individual or the family.

Do The Displaced Have A Right To Return? A Close Look At South Asian Experiences by Bhavani Fonseka

South Asia has witnessed countless instances of displacement resulting in refugee and IDP populations. This paper will focuses on the freedom of movement and right to return of IDPs.  

Right to return is generally perceived as return to one’s own land and home, or village or community. Return to one’s land and home needs to take place within a rights framework where IDPs and refugees are informed of their return and the return is voluntary. In the process of informing IDPs of return, it is ideal if choices are provided to where IDPs can return. In the context of refugees, the same principles of voluntary and informed return needs to apply. Return that follows such measures ensures sustainable return where IDPs and refugees are able to reintegrate faster into their former social networks and communities.  

Freedom of movement and the right to return has reference in both the international framework and the national framework in Sri Lanka. There is no international law specifically governing IDP rights. The Guiding Principles is the first international document which specifically deals with IDP rights though is not enforceable.   

Right to return has specific mention in international law. Article 13(2) of the Universal Declaration of Human Rights sets out the right of return, but places no conditions on the quality of this return. The ICCPR in Article 13(4) also states that no person shall be arbitrarily deprived of the right to return to his country. None of these provides standards that can facilitate a safe and dignified return to a person’s home. In the General Comment No 27: Freedom of Movement by the Human Rights Committee in 1999 there was specific discussion on the right of refugees and IDPs to return. In 2005 the Pinheiro Principles, applicable to both refugees and IDPs, were introduced which recognised the importance of housing and property restitution, as well as a form of re-integration and rebuilding lives and livelihoods.  

In country specific cases too the right to return and conditions of return have been discussed.  

There is no specific legislation on IDPs presently in Sri Lanka but protection is guaranteed through the Constitution of Sri Lanka and other national laws which are discussed below. Case law also has broadened the scope of the rights of IDPs which are briefly discussed. A draft IDP Bill is presently being formulated by the IDP Unit of the National Human Rights Commission of Sri Lanka. Another important legislation in relation to return and resettlement is the Resettlement Authority Act of 2007.  

The ICCPR Act 2007 and Geneva Conventions Act 2006 are two pieces of legislation that were introduced as enabling national legislation to two key international instruments ratified by the Sri Lankan authorities. Though Sri Lanka has a legal framework in place to protect a person’s freedom of movement and right to return, practice has shown that rights are not always protected and that much needs to be improved in the legal framework and its application.  

Case Study: Displacement in Sri Lanka

There has been renewed displacement of civilians and communities in the North and East of Sri Lanka with the escalation of hostilities in December 2005 and threats to human security. The Government abrogated the Ceasefire Agreement (CFA) on 2^nd January 2008 and with it Sri Lanka returned to war. The Sri Lanka Monitoring Mission (hereinafter referred to as the SLMM) that was present to monitor the CFA left on 16^th January 2008.  

At present, Sri Lanka is experiencing a humanitarian crisis in the North due to the newly created displacement which has aggravated the situation of IDPs and affected communities and the shrinking space for engagement of humanitarian and relief agencies. Reports state that an estimated 800,000 civilians were displaced due to the conflict prior to the CFA. With the December 2004 tsunami, around 1,000,000 were displaced,, many of them experiencing displacement multiple times. With the signing of the CFA many IDPs and refugees were able to return to their homes and many relief, rehabilitation, resettlement and reconstruction projects were initiated by the government and international and national organisations (hereinafter referred to as the I/NGOs).

Freedom of Movement and Instances of Abuse 

Sri Lanka has witnessed several incidents where a citizen’s movement has been restricted on the basis of security. Violence and the security restrictions have made movement in and around the North and East in particular extremely difficult. Movement is affected at multiple levels and has a direct impact on lives and livelihoods, increasing the vulnerability of displaced and affected populations. With the recent spate of hostilities, new restrictions on movement similar to those on vehicles have been introduced. Severe restrictions on movement to LTTE-controlled areas and Jaffna have been imposed over the course of the last two years.

Stringent security measures are also in place in Jaffna, where locals leaving the area need to obtain security clearance and approval several weeks before departing the area. A key issue that needs to be flagged with the present military drives is the situation of IDPs and civilians living within the LTTE controlled Vanni area which presently covers parts of the Killinochchi and Mullativu districts. Restrictions have been imposed in other parts of the North and East.

The restrictions on movement have an impact on day-to-day life. The restrictions have led to shortages of goods and price hikes. Even humanitarian agencies have faced a variety of restrictions limiting their ability to effectively deliver goods. It affects the effective functioning of essential services including that of the government, humanitarian and medical services. The establishment of the HSZs in Jaffna and in Sampur in the Trincomalee district are other extreme examples of restrictions on movement.

Resettlement Drives: A Reality Check  

Displacement has resulted in subsequent resettlement drives in Sri Lanka. Migration of people and resettlement drives has raised concerns whether force has been used to move people. It is important to question the displacement in the North and future drives of resettlement and return.  

Upon return, the authorities need to ensure that restitution plans are in place to provide for the affected. Restitution of housing and property need to be a key component in return drives, with information provided to the returnees on their rights and assistance available. At present there is limited discussion on this issue. At present a few actors such as UNHCR, NRC, Sarvodaya are involved in providing assistance. Such programmes need to be implemented in the entire country.  

Compensation for lost and destroyed property and housing need to be part of a well planned return process. Returnees need to be provided with assistance to rebuild their lives and homes and restart the livelihoods. Compensation schemes in Sri Lanka have been ad hoc and there is no consistency in providing for affected communities.. The government needs to take the initiative to have a comprehensive plan for the payment of compensation to affected communities and payment should not be dependent on undue influences and political affiliations.  

Mapping the Mixed and Massive Human Flows in South Asia (With Special Reference to Statelessness and its Impact on Women and other Disadvantaged Groups) by Partha S. Ghosh 

The phenomenon of human flows, that is, movement of people, both as individuals or groups, from one place to another, is as ancient as humans on earth.  It is estimated that in 2005 there were about 190,000,000 migrants worldwide that accounted for about 3 per cent of the global population. The South Asian regional scene makes an interesting case to analyse for several reasons.  The region has witnessed massive inter-state and intra-state movements of people as no other region of the world has—in the last six decades about 50 million people have been involved in the inter-state process alone.  Second, what makes the experience different is that almost the entire process is largely attributable to human failures, imperial machinations, and mismanagement of inter-communal relationships, and not economic factors.   

The phenomenon has affected both politics—domestic and inter-state—and social relationships in the region. As is the case in all such cases, the greatest victims are women and children.  This paper first captures the process by mapping all the waves of migration and displacement in the region, both across the nations as well as within them, and then to underscore their socio-political impacts. Two categories—the rural-urban migration, and, two, the blue-collar labour migration to West Asia and the white-collar labour migration to the West have been excluded from this analysis.   

The origin of the idea of South Asia as a region can be traced to the late 1970s when South Asian regional cooperation was first mooted.  From a strictly conceptual and methodological point of view, all inter-state human traffic in South Asia can be attributed to the failure of nation building and its fall out.  The category is subdivided into the following sub-categories based on the cause-effect dialectics:

1.        Colonial legacy of Partition,
2.        Majoritarian nation-building approach,
3.        Democratic deficit,
4.        Open, or virtually open, borders,
5.        War related migration,
6.        Developmental and environmental migrants,
7.        Stateless or the virtually stateless,
8.        Extra-regional interventions, and
9.        The IDP Scene. 

Most of the migrants and refugees in South Asia belong to poorer sections of the societies, and since in South Asia being poor on the one hand and belonging to the lower castes or tribes on the other are more or less co-terminus, the latter forms the bulk of the displaced.  The Hindu refugees/migrants from East Pakistan and later Bangladesh mostly belonged to the scheduled/‘untouchable’ castes. Similarly, most of the displaced due to the construction of dams in India and Bangladesh, or due to the ongoing militancy of the Naxalites and the state’s response to counter it have been tribal people.   

Since patriarchy dominates almost all societies in the world it will be tautological to say that women are greater sufferers as refugees, forced migrants or displaced persons.  In the case of migrants by choice also the decision to migrate is generally a male decision.  The female migration that follows is largely due to the requirements of family reunion.  Female migrants are less in number globally, and in South Asia particularly, because of its additional cultural reasons. In 2000, the percentage of female migrants in South Asia was 44.4. There are several ways in which women suffer more than their male counterparts. While their physical vulnerability exposes them to sexual abuse and maltreatment at work places, they are discriminately paid as well.  At home the real burden of resettling in new abodes primarily falls on women.   

In South Asia the problem of refugees is relatively less strident compared to those of migrants and internally displaced, who constitute the bulk. Since the other issues get embroiled in domestic politics they become more intractable Just to take the example of India, three political developments are likely to complicate the problems further. First, the growing communalisation of Indian politics is making the Bangladeshi migrant issue more complicated for decision makers. Second, the regionalisation of Indian politics will increasingly make any central response to such pan-Indian problem more problematic. And third, the delimitation of Indian parliamentary constituencies (still incomplete, five states are yet to have delimitation) has already added five more reserved (SC&ST) constituencies making the depressed classes and tribals more exposed to cutthroat politics.   

A wave of democracy is inundating South Asia, but that has its own dilemma. As Ranabir Samaddar’s study (1999: 132) had shown that democracy sometimes victimises the marginalised even more. The South Asian states that are heading towards democracy, yet are fragile political entities in terms of democratic institution building, will be even more dangerous for the week and marginalised of the populace.  

The enormity of the problem of migrants, refugees and the internally displaced persons defies all theories of governance because it inevitably gets politicised making the solution complex.  The only redeeming feature is that because of social and familial networking the state alone is not the service provider. For example, the Sri Lanka Tamil refugees in Tamil Nadu, the Afghan refugees in the NWFP of Pakistan, or the Bangladeshi Hindu refugees in West Bengal often depend in the initial stages of their arrival on migrants who had come earlier.  Since the borders in general are porous there is always a sense of having dual belongingness, which actually underlines the artificiality of borders in the Indian subcontinent.  

Besides state interventions based on legal regimes, what is required more is civil society’s contributions both ideationally as well as in terms of activism.  Mercifully, people to people contacts in the region are growing in spite of higher walls that are being built by the states to prevent academic seminars and conferences.  The path has hurdles, but they will have to be overcome. 

National Human Rights Commissions and Internally Displaced Persons: The Sri Lankan Experience by Mario Gomes 

In response to both international and domestic pressures, the Sri Lankan Parliament passed legislation in 1996 establishing a permanent Human Rights Commission (HRC), which began functioning in July 1997. Initially, the Commission moved cautiously in interpreting their mandate and focused mainly on receiving and resolving complaints from individual victims or persons acting on their behalf. It had only a marginal impact on the advancement of human rights in the country. 

The new group of Human Rights Commissioners who took office in 2000 (and who for the first time included a woman) envisaged a broader role for the Human Rights Commission. The Commission decided to initiate a study into the status of the IDPs, a fluctuating population of between 500,000 to one million for more than twenty years. In generating a set of findings and recommendations that would identify a role for the Commission, it also wanted to ascertain the potential for applying the Guiding Principles on Internal Displacement in Sri Lanka.  

IDPs in Sri Lanka have had little choice in opting to remain or to flee. As a group they are identified by a common history of uprootedness and continue to have fewer opportunities to meet their basic needs than those Sri Lankans who have not been forcibly displaced.  

The experiences of the displaced have varied, depending on their geographical location, their ethnic background, the interaction they have had with local and international NGOs, and their relationship with the local population.  

In the early 1990s the situation with regard to the displaced population was relatively stable and many people were re-settled in the east. Previously the state and NGOs had focused on providing emergency relief and assistance, believing that displacement was a short-term phenomenon. However, as displacement acquired a semi-permanent character, emphasis shifted to helping the displaced ‘take responsibility for their lives’ and access to employment emerged as a major concern. In the wake of the October 1995 offensive, the emphasis again shifted to ‘relief and assistance’ because of the massive displacement that took place and the humanitarian consequences that ensued.  

The government of Sri Lanka has assumed some responsibility toward the displaced but its policy has been heavily influenced by military imperatives.  

In Sri Lanka, the number of displaced women exceeds those of the men significantly. In addition to the problems shared by other IDPs, women also face gender-based discrimination and often gender-specific violence and exploitation like rape, incidents of which are increasing. The collapse of community and family structures, the lack of access to health care and food have made the displaced women even more vulnerable. Where women have lost their husbands, the burden of carrying on with family life has fallen exclusively on them. Displacement has affected the human right to privacy in significant ways.  

According to the study, the Guiding Principles on Internal Displacement was not being fully complied with in Sri Lanka. Certain categories of IDPs, such as females and single heads of households, the elderly and the disabled, were particularly vulnerable and their special needs were not being effectively addressed. There was the lack of a coherent policy on displacement because of lack of state vision, lack of political will and little coordination among the state entities involved.  Malnutrition was very severe in the areas under LTTE control.  Because of the embargo on so-called ‘war related items’, like kerosene, fertilizers, books, maps, inks, fishing material, etc., which adversely affected the welfare of those populations.

The study concluded that the Commission’s Regional Coordinators were not equipped to deal with the problems of IDPs.   

Subsequent to the publication of the study, UNHCR committed itself to help develop the capacity of the Commission to respond to IDPs. The NGOs that collaborated on the study have also begun to explore the possibility of specific projects aimed at the Commission. The Consortium of Humanitarian Agencies (CHA), has been looking into the possibility of conducting regular training programs for Commission field office staff as well as developing programs of legal aid for the displaced. UNHCR and the Bar Association of Sri Lanka have also begun to look at developing a legal aid program aimed specifically at the displaced. 

A human rights commission is an institution is supposed to possess autonomy from the state so as to enable it to investigate the conduct of the state. In 1998 the UN Committee on Economic, Social and Cultural Rights noted that national institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights. Sri Lanka’s Commission has taken effective steps, extending its work to encompass IDPs.  

A recent report of an International Colloquy on the Guiding Principles on Internal Displacement noted that internal displacement was often a critical aspect of the human rights situations that fall within the mandates of human rights commissions and should be an essential part of their work.  

The experience of the Sri Lankan Human Rights Commission with IDPs raises several questions for human rights commissions worldwide. Do these commissions possess the potential to begin looking at the rights of IDPs in a sustained and systematic way? What comparative advantage do they have over other institutions? Their comparative advantage lies in their location within government and the access this gives them to a wide range of actors who are either involved in the conflict or in providing relief and assistance to the displaced. It also comes from their ability to engage in a wide range of intervention strategies, both on their own and in combination with other actors. Their status as a national institution enables them to critique government policy and to go public with their findings, which are likely to have more impact than the pronouncements of NGOs. 

At the normative level, the Guiding Principles on Internal Displacement should provide the framework to guide commissions in their actions.   

As the Sri Lankan experience shows, national human rights commissions provide one way of responding to the concerns of internally displaced persons.  

The Media and Migration: Hype, Prejudice and Misunderstanding by Sanjoy Hazarika 

My focus will be on media related issues and concerns as well as the lack of understanding and prejudice with regard to migrants, IDPs and refugees.

• Media coverage of victims of forced displacement internal displacement/refugee flows caused by conflicts as well as by natural disasters (flooding, earthquakes etc.) and economic downslide is usually sloppy, lacking depth and precision, and often all three. Public and political perceptions are influenced by media
• In a number of cases, connections are sought to be established without any evidence or documentary clarity that seeks to link religious groups especially minorities to acts of terrorist violence.
• The media, both English and vernacular, also has a habit of putting stereotypes to migrants: thus, "Bangladeshis" is used as a pejorative and often linked with "jehadis" because of Islam. These provide examples of double "victim-hood" where a simple name allows governments, political parties, organizations or media to draw conclusions without any facts and target specific individuals or groups and then to question their nationality and loyalty and throw this into the open through an ignorant or equally prejudiced media.
• In the case of Mumbai, the migrant lower middle class and working class (from "Bihar" and "UP") are targeted by right-wing thugs from Raj Thackeray's group, which are then given tacit support by the state government, despite the Prime Minister's admonition of the Maharashtra Chief Minister: local politics carries the day, not the law
• This raises the question of the enforceability of basic freedoms and the fundamental right enshrined in the Constitution that permits all Indians to move freely in search of jobs and livelihoods and the capacity of the State to ensure and enforce: are these charitable gestures to be doled out by the powerful instead of the entitlements/rights which they represent?
• Protection strategies need to grow from better understanding, not just of the law and its enforcement, not merely of international jurisprudence and their relevance, but of each other; and also of enabling media to get a macro picture of issues instead of jumping to conclusions. This in turn pre-supposes detailed briefings and interactions between practitioners, policy makers, victims and media that will enable all four entities to get a better understanding of the other.
• In the case of those who suffer, how do they access their rights? Are institutions in place and functional such as State Human Rights Commissions, Women's Commissions, RTI officers and offices which will enable transparency and access.
• The differences between IDPs (such as victims of internal conflicts and those displaced by Government development projects, such as large dams or highways), refugees (Chins, Sri Lankan Tamils, Afghans) and migrants (illegal migrants such as from Bangladesh and legal ones from Nepal) need to the defined with precision
• This in turn asserts the need for a National Immigration Commission that looks at all three categories and develops a methodology and strategy of dealing with mixed migration, on the basis of a collective of processes including Work Permits, Bio-Metric Identity Cards (i.e. better border management strategies), existing Voting Cards and Electoral Lists
• There is a need for a detailed survey of these groups through established social science methodology (random sampling but extremely extensive and intensive across the country and especially in those areas where the issues are especially critical)  

Victims of Violence in the Borders and Humanitarian Tasks: The Jammu and Kashmir Case by Anuradha Bhasin Jamwal

Borders are defined as geographic boundaries of political entities or legal jurisdictions. Borders, however, are also places inhabited by people and in many parts of the globe, areas where the ugly manifestations of violent conflicts including wars are staged. Borders thus do not only become zones of ambiguity, vulnerable to challenges, especially during times of war but also areas where residents bear the brunt of the violence often from both sides or face the threat of displacement. Even in times of peace borderlands frequently suffer from violence, insecurity, and lawlessness, when neighbouring countries are drawn into conflicts or where state’s authority and control are constantly challenged and subverted by transnational forces. However, in most conflict areas, victimhood at the borders is something that majority people are in total denial of; in fact, it may even be unheard. The inaccessibility and lack of development of the hostile borderlands makes its people totally invisible and unheard.

Borders are deemed to be just lines on the map, areas that are demarcated and areas that demarcate boundaries, areas that are inhabited by valourous army personnel that protect the “nation’s” territorial integrity. From a state’s perspective, protecting borders means to protect the territory, not the people. In popular knowledge they are not deemed to be areas that belong to its people, a civilian population that lives there and owns land, or should have belonged to them.

It has been argued by several political thinkers that violence and victimhood at the borders does not stop at the borders. It percolates further into the interiors, affecting lives of millions of people.  While what happens at the borders affects lives in the interiors and even the decision making at the highest seats of power, the policies and decision determined at the power centres impacts the lives of the people at the borders.

In the case of the Indian sub-continent, the 1947 partition shaped the destiny of not just politics but also of the people divided by the line that separated a single geographical unit into not just two countries but two entities pitted against each other – with constant rhetoric of binaries of ‘us and them’. The brunt was borne by not just the divided families or the divided land of Punjab and Jammu and Kashmir but more so by the people living on the borders, who neither had any say while the lines were being demarcated, running at places through villages and slicing them into two halves with different nationalities, nor any control.

The powerlessness of the people is best demonstrated by the people of Turtuk, a village on the Line of Control close to the glacial heights of Siachen. In 1947-48, the village became part of the territory ceded by Pakistan and later carved into what is known as Pakistan’s Northern Areas. The people automatically became citizens of Pakistan. In 1971 war, the village was occupied along with its people by the Indian army and shortly after granted Indian citizenship rights. Interestingly, owing to their ‘Pakistani’ history, they are not looked upon with much trust by the Indian army manning the borders. But who gave them the choice to be on which side of the demarcated line at any given point of time or choose their nationality.

Not much different is the fate of the people in border areas, both on the International Border and the disputed Line of Control, even though many of them have not gone through the ordeal of identities being changed by force. These border areas are too heavily militarised for any semblance of normalcy and normal life. The levels of violence are not always visible, often not reported or often felt psychologically due to build up of troops, excessive restrictions, fenced and mined areas. Violence and victimhood at the borders manifests in several ways: 

Firing and Shelling
Landmines
Border Fencing
Repression
Use as spies and Human Shields
Migrations

A large chunk of people is said to have crossed the Line of Control after every war, the largest migration having taken place in 1965, many of whom returned a year later. These displaced persons have been registered as refugees in Pakistan after 1990 and many of them are putting up in camps set up by the Pakistan’s Azad Jammu and Kashmir (AJK) government.

Stories of repression by Indian army also abound. Refugees maintained that in October 1990, the crisis became worse for them. They had no other option, but to migrate. The Indian army atrocities compelled them to change direction and cross the dreaded LoC. These displaced, who crossed the Line of Control find themselves in a situation worse than before.

Humanitarian Tasks

There are enough humanitarian tasks that can be taken up on both sides of the borders for the people. But the major problem in the India, Pakistan case is the denial of absolute inaccessibility of the border areas for the common masses. It is very difficult for the NGOs to penetrate. The only time that few organizations began working on the displaced persons at the International Border in Jammu was when the mass mobilization of troops in 2001-2002 and large scale mine laying operations displaced people in huge numbers. The only time that the NGOs ever reached the areas close to the Line of Control was after the October 2005 earthquake but the movement remained restricted on both sides.  

To project its ‘humane face’, the army has embarked upon ‘Sadbhavna (goodwill) Projects’ offering educational facilities at some places and vocational training at some other places, thus replacing the civil administration, in border areas. A serious impediment is the fact that agencies including international agencies step in only when there are displacements. The United Nations or the International Committee of Red Cross are unable to perform.

While displacements cannot totally be avoided, the basic reasons of victimisation need to be dealt with. But, more crucially, since their very victimisation stems from political conflicts with communities across the borders or because governments on both sides of the borders are engaged in a dispute that assumed violent proportions, the very conflict needs to be addressed.

Protection Needs, Current Legal Avenues and New Legal Strategies: South Asian Perspective by K. M. Parivelan

An Overview of South Asia

The South Asian situation on ethnicity and related tensions are inevitably somewhat nebulous and shrouded in uncertainty. “It is also evident that religion and language as components of ethnic identity are important in dividing as well as unifying groups in South Asia. For example, in Sri Lanka, language is a basis for intra-group unity amidst an internal cleavage along religious lines, whereas ethnic groups in Pakistan are divided along linguistic lines even though they share a common religion. In Bhutan, Buddhism tends to unify the linguistically divided Bhutanese against the Nepalese speaking Hindu migrants from Nepal. As regards India, language is a major unifying force for many groups in conflict, while religion remains the main source of conflict in a few cases—notably in Punjab and Kashmir. It is only in Bangladesh that both religion and language provide the basis for inter-group division and intra-group unity”. This is the most significant complexity in which ethnic (language) and religious identity is intertwined in such a way to add more complexity to the region.    

Table 1- Nature of Conflicts

* Autonomist conflict turned secessionist.
(Source: P. Sahadevan, “Ethnic Conflicts and Militarism in South Asia” International Studies, 39,2 (2002) p.105)

The colonial and post-colonial process has tremendous influence in the ethnic and religious identity shaping in South Asia.

Table 2 Sources of Conflict: Ethnicity and Religion

          Ethnic    Religious     Mixed

• Eelam   Hindus Vs Muslims (Ind.)  Kashmir (Ind.)**
• Mohajir (Pak.)  Muslim Vs Hindu (Bang.)  Khalistan+ (Ind.)**
• Sindh (Pak.)+  Muslim Vs Christians (Pak.)  Muslims (SL) 
• Bodo (Ind.)          
• Gorka (Ind.)+  Hindu Vs Christians (Ind.)  Mizo (Ind.)
• Dravidastan (Ind.)+ Buddhist Vs Hindus (SL)*  Naga (Ind.)
• Assamese (Ind.)+
• CHT (Bang)
• Lotshampa (Bhu)
• Meiti (Ind.)

* Ethnic conflict with religious roots

** Religious conflict with ethnic roots

+ Not active at present

Further the majority and minority syndrome is root cause of combined challenges emerging from the ethnic and religious identity formation and social boundary creation in the post-colonial period.

Table 3 Majorities –Minority Dichotomy

            Majority       Minority

• Hindus-----------------------------   Muslims and Christians (India)
• Sinhala Buddhists-----------------  Hindu Tamils  (Sri Lanka)
• Muslims---------------------------   Hindus and CHT (Bangladesh)
• Hindu Tamils----------------------   Tamil speaking Muslim ( N. Sri Lanka)
• Punjabis----------------------------   Sindhis, Baluchis, Pakthuns (Pakistan)

There are several causes for identity formations and emerging frictions ranging from faulty constitutional provisions not in tune with plural cultural mosaic of South Asia to non-implementation of existing laws adequately. Failure to appreciate multi-culturalism and pluralism in the political processes of South Asia in general and India in particular has root causes to many of the ethnic tensions and forced displacements.

 These complex tendencies in the broad field of migration have contributed to increasing xenophobia in receiving countries. That, in turn, has been one of the key factors leading to the development of elaborate systems and barriers that regulate the movement of people across borders, in particular from the South to the North, but increasingly also within the South. By themselves, these developments pose a challenge for agencies that deal with conflict related displacement at a global level. We can rely on the definition of mixed migration in this paper as “Complex population movements including refugees, asylum seekers, economic migrants and other migrants” The term migrant is usually understood to cover all cases where the decision to migrate is taken freely by the individual concerned for reasons of "personal convenience" and without intervention of an external compelling factor.” 

 In accordance to human rights principle no displaced person should be denied protection and durable solutions, activities have traditionally been focused on refugees, internally displaced, and others affected by conflict. However, in line with the above developments, it has become evident that these groups of concern are often mixed with other individuals and groups engaged in migratory movement. Distinguishing among these groups is increasingly difficult and perhaps even partially irrelevant, not only because of the mixed motivations for migrating, but also because of the frequent phenomena of changing status en route; a refugee may return to place of origin to become IDP again and later become refugee once again in a neighbouring country or an IDP may move to neighbouring county as a refugee, only to move on to other countries as a migrant in search of improved livelihood opportunities. This does not change the fact that (s)he was forced to leave her/his country because of conflict and that (s)he may not be able to return, but her/his legal status is nevertheless changing, depending both on own choices and on the policies of relevant authorities.  

Following Afghanistan, now India along with neighbours has to be guided by its mandate, its vision and its framework for assistance activities, which incorporates key international instruments and codes related to humanitarian assistance and protection. It will always be in response to forced displacement. However, in determining whether and how we should utilise such a presence in responding to broader protection gaps in mixed movements. India is committed to responding to the protection needs arising from mixed migration provided the neighbours can also reciprocate. It is of key importance for India to strive towards ensuring that none of its action has any negative impact on concerned individuals and groups either within the country or in the region. India has to base its strategies on a comprehensive analysis of the causes and effects of protection gaps in countries of origin, 

A collaborative approach is necessary at the regional level involving institutions, governments, inter-governmental organisations and people to ensure an appropriate, comprehensive and sustainable response to the broad range of protection problems arising from mixed movements. 

Protection Strategies for People In Situations of Forced Migration Media and Displacement by Pamela Philipose 

The 20^th century has been characterized as the “century of displacement” and the first decade of the 21th century has produced little evidence of a reversal of this trend. An estimated 40 million people worldwide have been uprooted and forced to flee violence and persecution, but, they have remained in the periphery, not just in terms of spatial location but in terms of mainstream consciousness.  

The media has played a central role in the othering of the displaced and this paper examines ways in which newspapers and television channels have done this. But first, it may be useful to understand the intrinsic nature of the media at a point when they are at the height of their powers. Today, newspapers and television channels have through a combination of sophisticated communications technology and resources improved immeasurably their access to the various theatres of news. They can bring incidents, which had once played out in anonymous corners of the world, right into the living room in almost real time. They have, thus, the potential of tearing through the screens and masks that those in power have used in order to exercise with impunity the politics of repression and, in the process, can help deepen general understanding of human rights violations, further the articulation of outrage and resistance to them, and ensure important corrective action through the delivery of justice. Many newspapers and television channels have on occasion achieved this. However, such an outcome is rare. Two broad reasons can be cited: One, the nature of media content in today’s world. Two, the manner the media have come to be used and deployed by the power elites within countries. 

We see this melding of objectives and interests at its most heightened form during situations of conflict. The new model of “embedded journalism”, officially inaugurated in the Iraq War of 2003, allowed reporters to cover the war from the very scene of the fighting, subject to two conditions – they were never to jeopardize troops or the mission. The strategy seemed to work: many ordinary Americans believed that the Iraq war had a humanitarian motive and that there was the Saddam Hussein government was in cahoots with the Al Qaeda.  

Closer home, after the attack on the Indian Parliament in December 2001, we saw the amazing 11-month eyeball-to-eyeball confrontation between two nuclear powers across the India-Pakistan border and innumerable media commentators on both sides of the divide shrilly advocated “direct action”. This is where the media acts as spokesperson for the nation state.  The routine media use of the military term ‘infiltrator’, to characterize everybody from environmental refugee and distress migrant to a person who actually intends to commit acts of terrorism, is an indicator of the distorting nature of this discourse.

Given the nature of the media today its coverage of displacement and of people who are essentially marginalized, has been shabby, disconnected, superficial and negative for the most part. 

This paper highlights three broad mainstream media narratives about displaced populations, both from within the country and from outside its borders. One, they are erased from the public gaze and their status is consciously trivialised; two, they are occasionally subjected to an aggravated focus, especially in the wake of disturbances like bomb blasts and so on; three, they are used in the construction of national or regional identities through the politics of inclusion/exclusion. 

One reason for the trivialisation of the displacement of populations through forced evictions is because it is viewed by both the State and the media as a simple consequence of development.  

If trivilisation and erasure is the treatment accorded to internally displaced populations, those characterized as “Bangladeshi infiltrators” are perpetually on the radar of suspicion. The lines of separation between those who come to India in search of livelihoods or to escape an environmental catastrophe and those entering with the express purpose of creating instability through targeted attacks of violence are consciously blurred.  

The third media narrative is to use the displaced or “the outsider”, to construct a national or regional identity through the politics of inclusion/exclusion. What happens invariably is that sectarian agendas are begun by interested groups, but once they begin to hold public attention, they quickly become mainstream discourse with very few media agencies willing to buck the trend.   

We finally come to the question: Is it possible for the media to stop viewing migrants through the prism of ‘national or regional security’, and perceive it through the prism of the ‘security of people’? The media, by projecting the case of the displaced people, could help society arrive at a rational cost benefit assessment that takes into consideration not just the direct economic costs of a particular project, but its social costs. This would contribute immeasurably in the exploration of the least-displacing alternatives and ensure the routine miscarriages of administration, as for instance over-acquisition of land, is avoided.

Conversely, in expanding on the social and economic costs of the narrowcast politics of irredentist forces which targets the “outsider”, the media can play a powerful role in upholding the fundamental right of every Indian to move freely throughout the territory of India.  

The case of the migrant from outside the country is more complex given the fact that the national media is one of the prime sites for the construction of the ideology of national identity. But even here we see variations depending on political and social circumstances. The refugee flow from East Pakistan in 1971 which reached about 10 million, was met with a rare national consensus. The Tamil refugees during the early eighties were welcomed and given staunch support in local press coverage. 

Better informed media coverage is needed which in turn would help persuade the government into evolving an ethical and legal framework with which to deal with what are essentially human crises. Such a framework would also address concerns of national security in a far more effective and useful manner than the sledgehammer approach of demonizing an entire community. 

Pakistan: Displacement Puts Thousands at Risk! by Hina Shahid 

There are millions of internally displaced persons in developing countries such as Pakistan. The governments that came from 1947 onwards, were committed to development. They were acutely aware of the lack of industry, the lack of food production, the lack of schools, hospitals, electricity, roads, and so on and so forth. In conceptual terms, Pakistan was a development state. In 1977, Pakistan ceased to be a development state and till today, Pakistan is a national security state, where national security, and not Development is the main objective of the state.  

The construction of dams started in 1960 when the Indus Water Treaty with India was signed and the Tarbela and Mangla dams came into being. This was the time, where the story of internally displaced people started as a result of the construction of big dams, National Motorways, Layari Expressway, Left Bank Outfall Drainage, Right Bank Outfall Drainage I and II, Salinity Control and Reclamation project, National Drainage Program. Tarbela Dam caused displacement of 96000 people and destroyed 120 villages; Ghazi Barotha Hydropower project affected 52 villages and displaced around 21,653 people. The Asian Development Bank (ADB) stated in a study that most of the victims of Tarbela Dam had to wait till 2003 to receive promised compensation for the land they lost due to flooding caused by the dam, while a smaller group of some 225 people had still to receive full compensation. By 1980, Pakistan had become the 10th largest recipient of the World Bank/IMF loans.  

The irrigation system, introduced by the British in 1932 was brought to its zenith during the ‘Green Revolution’ of Ayub Khan. However, the dearth of indigenous expertise in the implementation of this irrigation system soon started eating away the short-term agricultural benefits. The non-availability of drainage system started playing havoc with the fertile lands, inviting the menace of water logging and salinity. The government authorities awoke to the problem in the 70s. 

The absence of resettlement policies and laws, or the use of laws promulgated during the colonial period has left a large population marginalized. A number of drainage schemes in Sindh were introduced to minimize the degradation of the fertile lands. Project Left Bank Outfall Drain (LBOD) was launched to provide a long-term solution to the drainage issue of Sindh, for the first time disposing the saline drainage water into the sea. Since the very first day, as its faulty design proves, and it backs its ambitious technical structure, without any proper outfall results. Pakistani professionals have been trained in a way to conceive, design and build the hardware without bothering to consult locals, who are going to be the ultimate users. More than 300 people were killed and more than 5000 people were displaced as a result of the LBOD, while 10,000 fishermen lost their livelihood, and about 52 species in the area had been damaged. The ongoing RBOD-II project in Sindh of length of 273 kilometers could jeopardize hundreds of villages from Dadu to Gharo and hundreds of small farmers will loose their sources of livelihood, and thousands will be displaced. Several mega-development projects have caused, and are causing environmental degradation, perpetuating inequality and generating poverty.  

Presently, more than one dozen multinational oil and gas companies are engaged in the exploration and production of oil and gas in Sindh. These multinational companies are violating the international and national laws, rules and regulations. The alteration in ecosystem has created joblessness and hundreds of kilometers of land are being destroyed by saline water.  

Natural disasters have also bred large scale displacement. Floods have displaced millions of people in Pakistan. The 1973 floods in Sindh affected approximately 166,000 people of eight districts of Sindh. Around 314,039 people were affected by floods in the year 1975. The floods in 1976 are considered to be the worst, affecting some 28,260 villages, while 3,276 people were displaced. Acers of cultivated land were damaged and 9,087 cattle were lost. The drought spell of the year 2000 in province Sindh created unsavoury Mandis (markets) of women and young girls, where they were sold like animals.

About two years ago, the Runn Pathani railway Bridge collapsed near Hyderabad in Pakistan, and for 20 days, Karachi was cut off from the rest of the country. A few months ago, two berths at Karachi port collapsed into the sea. Musharraf’s regime was a continuum of the national security state. In the year 2001, he launched a number of mega projects in Balochistan, including Mirani Dam, a 633-kilometer Gwadar-Pasni-Makran Coastal Highway and a 97-kilometer Turbat-Mand road. The social and economic reality of Balochistan is that it is the most backward province in Pakistan. The army stationed 35,000 paramilitary troops in Balochistan to suppress armed protests by tribal militias in 2005. Since then, ten of thousands of people have been displaced. Over 80 percent of the deaths among those surveyed in 2007 were of children under five. 

The National Resettlement policy has been formulated to not only cover the affected persons in existing system, but also to ensure an equitable and uniform treatment of resettlement issues all over Pakistan, including developmental projects. The policy makers in Pakistan always keep women aside and the NRP has proved that women are not included in any stage of decision-making processes.

Now for conflict induced displacement. The rate of displacements has picked up in mid-August of this year when the Pakistani authorities launched a military operation against pro-Taliban militants in Bazaar Agency bordering Afghanistan. Some 190,000 people have been displaced and now sheltering in their country’s North West Frontier Province (NWFP), and around 20,000 Pakistanis and Afghans who fled into eastern Afghanistan’s Kunar province. The displaced people have complaints about the tough and overcrowded life in makeshift camps. Food supplies are erratic; water is limited and is too hot. As a contingency step, government has closed down all school and colleges to accommodate the refugees in those buildings. The condition of young girls is too grim. They have been stopped from attending schools on the advice of their elders. According to one report, about 1100 children were deprived of polio drops during the previous anti-polio campaign.  

Pakistani government has no national policy on addressing conflict-induced displacement. The government agencies have not only failed in arresting displacement caused by armed opposition groups, their operation against them has itself displaced hundreds of thousands of innocent people. Women and children make up 8o percent of the world’s internally-displaced people. A more urgent humanitarian respond is needed in current conflict situation in Pakistan. Advocacy is needed to advance the international human rights agenda and to disseminate important instruments such as the Guiding Principles on Internal Displacement, so that these are well understood by UN agencies, NGOs, and government.  It is unlikely that adequate humanitarian support will reach populations displaced by the conflicts in Pakistan unless international agencies continue to urge the government to increase access. The government of Pakistan must promote initiatives to get aid to displaced people and protect civilians during military operations.     

Protection Strategies for People in Situations of Forced Migration by Jeevan Thiagarajah

 The conflict in Sri Lanka has displaced more than 300,000 persons following escalated hostilities after 2006, this figure excludes the 100,000s displaced prior to this over the last two decades. The tsunami disaster caused further displacement, creating approximately one million IDPs.  As of December 2007, the Government estimated 577,000 IDPs in Sri Lanka. In terms of the proportion of the population, Sri Lanka has one of the world’s largest IDP populations.  

The Government response over the last two decades has seen many approaches, in terms of schemes to assist, however a lack of proper legislation or a national policy focusing on the needs of IDPs has hampered effective and durable responses to the IDP situation.  

This paper highlights the responses, challenges, and obstacles to date, on the part of the Government of Sri Lanka, humanitarian and development organizations working within the country and how the Guiding Principles on Internal Displacement can play a positive and key role in supporting a potential Government legislation and policy to safeguard the rights of IDPs.  

From 1980s onwards, as a result of the civil war, while the LTTE controlled certain areas in the North and East, the government managed to maintain skeletal administration structures in these areas registering IDPs and managing government-provided humanitarian assistance. The Unified Assistance Scheme also sought to include returnees (from abroad as well as those IDPs returning or resettling) such that they were able to benefit from government grants and loans, in a long term vision of hoping to support their ability to be self-sufficient.  However poor management eventually saw the UAS weakening in both its structure and maintenance.  

Throughout, the Government has established several rehabilitation and reconstruction programmes which, in the past, brought in much international financial assistance and other forms of support. However criticisms of early strategies by the Government noted the lack of participation amongst target groups and beneficiaries, when such approaches had been recommended.  

To date, Sri Lanka does not have a specific law or policy which seeks to comprehensively address displacement, however a law on the protection and assistance of IDPs has been in the thinking pipeline over the last couple of years. Existing provisions for protection have been scattered and non-systematic, to address critical issues.  

Recently, in 2006, the Consultative Committee on Humanitarian Assistance (CCHA) established by the Ministry of Disaster Management and Human Rights continues to bring together key decision makers across the government level as well as international and national partners and representatives from embassies and the European Union.

The listed programmes and efforts on the part of the Government side by side with development partners and I/NGO’s show good intentions, yet there is still a need for a more binding law, e.g. the NFRR was neither a binding law though Cabinet approved it as policy document which essentially does not provide any practical legal protection to IDPs. The Framework adopts the Guiding Principles on Internal Displacement without noting the requirements to make the principles effective. Parallel to this, the common laws which exist to respond to IDP entitlements are for the most part Authority-forming decrees. Several Acts are deemed special and only serve as temporary provisions in humanitarian responses as opposed to offering long term solutions.

However there are authorities such as the Resettlement Authority that are in place which aim to deal with IDPs and refugees, with several functions in place. The Resettlement Authority was established in April 2007, and led to the creation of a national legal framework to uphold the rights of IDPs and refugees, and to provide them with durable solutions to their displacement.  The Resettlement Authority Act No. 9 seeks to facilitate the resettlement or relocation of IDPs and refugees in efforts to rehabilitate and assist them.

On the part of the humanitarian community, several organisations have extensive experience and knowledge on the protection of IDPs. However the role of the Government in assisting and supporting the humanitarian community, and vice versa, is a notable fact.  

In some instances, international organizations and NGOs show reluctance to raise or become involved in protection issues in fear of provoking restrictions on their access and attacks on their personnel, or because they lack experience or expertise in these issues.

Currently, the following are key challenges faced in attempting to address the needs of IDPs.

Definition
Registration/Statistics
Assistance
Land
Return and relocation.
Compensation
Consultation with IDP’s, their Participation and Access to Information
Physical Security
Livelihoods/Health
Psychosocial Support
Recovery Programmes/Development  

While the Guiding Principles are exceptional on their own, they require the endorsement of respective countries experiencing internal displacement in order to materialize durable outcomes for IDPs. The critical need is for a national legal framework for IDPs in Sri Lanka, which would establish the rights of IDP’s. The presence of several national and international humanitarian agencies in Sri Lanka provides the Government opportunity to coordinate efforts to ensure that optimum efforts are used to ensure the protection and assistance to IDPs.  

Reinforcing protection should extend to recognize human rights as a central concern or function.  

The creation of the Guiding Principles has responded to a global need to have a wholly inclusive document which details methods to cover gaps in the international protection system for IDPs. The Principles serve to press all involved parties, to recognize their role at the different stages and to promote enhanced accountability on the part of State actors whose prime responsibility it is to ensure the protection of its citizens, IDPs included.  

Sri Lanka should actively seek to establish legislation which focuses only on IDPs and heavily incorporates the Guiding Principles on Internal Displacement, given the expanse and detail of the Guiding Principles.