*Divyabharthi Baradhan
Explosions boom, innocent children are killed every day, and once-beautiful families are torn apart by bullets in various parts of the world, reducing their homes to rubble. This devastation is not only a distant tragedy—it is a growing crisis. The Internal Displacement Monitoring Centre reports a staggering 51% increase in the number of people internally displaced over the past five years, reaching a record high of 75.9 million across 116 countries by the end of 2023. These tremendous figures accentuate the urgent need to pursue justice not only after conflicts conclude but also before and during them to protect the vulnerable from displacement and suffering.
Humanitarian law primarily addresses the punishment of war criminals after crimes have been committed. However, it is crucial for the law to extend its protections before and during conflicts. This article proposes a framework for a convention, founded on proactive justice, for the protection of Internally Displaced Persons (IDPs). The framework includes sustainable integration into other parts of the country, humanitarian evacuation from completely devastated countries, and provisions governing the evacuation of civilians before a conflict begins.
i. Limitations of Humanitarian Protection
Evacuation is defined as the necessary movement of persons protected under International Humanitarian Law (IHL), both within and from combat zones, toward territory controlled by a party to the conflict. The primary aim of evacuation is to shield innocent people from the effects of ongoing hostilities. For instance, IHL protects the rights of the wounded, sick, and shipwrecked to be relocated to medical establishments. Similarly, it guarantees the right of Prisoners of War (POWs) to be transported to internment camps. Additionally, Rules 15, 22, and 24 of customary IHL enumerate the precautions that parties to a conflict must take during military operations to minimize harm to civilians and civilian objects.
While IHL outlines these protective measures, it also has significant limitations. Its applicability is often restricted to the parties involved in the conflict, imposing the obligation to protect innocent civilians solely on them. When these parties fail to fulfill this duty, civilians are left vulnerable without intervention from third parties. This raises critical questions about the effectiveness of these protections. Indeed, the growing decline in compliance with IHL prompted the International Committee of the Red Cross (ICRC) to launch the Global Initiative, which aims to tackle contemporary challenges faced in preventing IHL violations.
However, the Initiative is non-binding, and the effectiveness of IHL in ensuring civilian safety remains uncertain. This leads to a fundamental question that remains unaddressed: Where is a safe place within a country when residential areas and other civilian objects are bombed and attacked indiscriminately, resulting in “domicide”? A similar dilemma arose during the Bosnia-Herzegovina conflict (1992–93), where the United Nations High Commissioner for Refugees (UNHCR) had to balance civilians’ right against ethnic cleansing with their right to life. This dilemma was succinctly expressed by a UNHCR Senior Liaison Officer, as follows:
“Political insistence on the right to stay should not in practice prevent people in danger from seeking safety. In many areas, remaining minorities wanted only one thing—to leave, and to be helped to leave. This created a serious dilemma for UNHCR and ICRC. While the organizations wanted to avoid becoming part of the conflict objective of ethnic relocations, they also recognized that assisting people to leave was often the only way to save lives. As High Commissioner Sadako Ogata put it, ‘if you take these people, you are an accomplice to ethnic cleansing. If you don’t, you are an accomplice to murder.’”
This dilemma underscores the legal distinction between IDPs and refugees, which carries significant humanitarian consequences, and directly impacts the level of international protection they receive. The Guiding Principles on Internal Displacement, which is not a binding treaty, defines IDPs as:
“persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”
As acknowledged in the Guiding Principles, IDPs face numerous hardships within their home country, such as family separation, lack of access to food, shelter, and medicine, and exposure to violent attacks, rape, and disappearance. In some cases, soldiers have used civilians or non-combatants as human shields. These people are in dire need of humanitarian assistance, yet international law fails to protect them adequately.
In contrast to IDPs, refugees are defined under the 1951 Refugee Convention as a person who,
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Despite its comprehensive definition, the scope of the Convention is limited to those who cross an international border and excludes those displaced within their country, leaving them stranded without assistance.
This morally arbitrary distinction—based on whether a person has crossed a border—lacks justification for offering selective protection to vulnerable people. International protection must transcend beyond mere descriptive semantics and provide real assistance to safeguard lives. The Guiding Principles, reflecting general international human rights law, place the responsibility to protect IDPs on national authorities, ensuring their equal rights. These general human rights include the International Covenants on Civil and Political Rights (ICCPR) and Economic, Social, and Cultural Rights (ICESCR), as well as the prohibitions on genocide, torture, and disappearance, and the Conventions on the rights of children, women, the disabled, and against racial discrimination. However, it is contended that given the non-binding nature of the Guiding Principles and the limitations of the general human rights framework in offering remedies for violations of IDPs’ rights, these principles remain inadequate.
This border-based distinction between IDPs and refugees stems from the concept of state sovereignty, as humanitarian intervention for those trapped within the border interferes with domestic affairs. However, although state sovereignty is an overarching principle in international law, human lives should be given equal priority. State sovereignty should not be the yardstick for the protection of innocent people, especially when governments fail to safeguard their own citizens. Instead, greater importance should be placed on fostering the humanization of contemporary international law.
ii. Reform Proposal
To overcome these challenges, this Perspective note proposes drafting a specific convention that establishes collective responsibility of member states (erga omnes partes) to follow standard procedures before declaring conflict, such as establishing humanitarian corridors, thereby allowing adequate time for civilians to evacuate. This “proactive justice” ensures IHL and human rights are protected before it escalates into a full-blown conflict. Furthermore, this framework should encompass a more inclusive definition of IDPs, extending to those displaced by natural disasters.
In effect, this codifies Rule 20 of customary IHL, which obliges parties to give effective advance warning of attacks. However, the current state practice indicates that a warning is not necessary when maintaining the element of surprise is crucial for the success of an operation or the security of the attacking or allied forces. To counterbalance this, the proposed treaty must affirm the primacy of raison d’humanite (reason of humanity) over raison d’etat (reason of the state), entrenching a victim-centred approach. This means treaties should prioritize humanity over state interests, reflecting the humanist outlook of international law as envisioned by Judge Cançado Trindade in his dissenting opinion in the case of Croatia v. Serbia (2015).
Any breach of this obligation would allow other member states to initiate humanitarian evacuation of IDPs at imminent risk to their countries, or to facilitate either their sustainable integration or safe relocation of IDPs within another part of the country not involved in the conflict, whichever is most appropriate to the circumstances, with the full consent of the civilians concerned. This is because the responsibility is owed to a group of states parties to the proposed treaty for the protection of their collective interest, rather than as an individual obligation owed to their own state. This mechanism complements the UNHCR and ICRC’s efforts to evacuate civilians at imminent risk, effectively fostering international support to protect innocent lives.
Another critical dimension of this proposal is the establishment of an obligation erga omnes. The obligation erga omnes, meaning the obligation is owed to the international community as a whole, is essential for the protection of vulnerable individuals in states that are not parties to the treaty, thereby enhancing its practical application. As previously held by the International Court of Justice (ICJ), in contemporary international law, the obligation erga omnes is derived not only from peremptory norms (jus cogens) but also from basic human rights, which encompass the inherent right to life under Article 6 of the International Covenant on Civil and Political Rights, as it concerns all states. Therefore, the conflict does not necessarily need to involve violations of jus cogens, such as genocide, acts of aggression, or racial discrimination for states to act.
However, respect for the principle of sovereignty should also be prioritized. To do so, the erga omnes obligation would require signatory states to initiate diplomatic negotiations with non-signatory states to facilitate the relocation of innocent civilians to safer areas. In this way, states’ right to non-intervention in domestic affairs is still preserved under Article 2(1) of the UN Charter. Moreover, the obligation is imposed on the state parties to the proposed treaty, not on non-parties, to proactively protect civilians in states that are not parties to the treaty through diplomatic negotiations when those states fail to do so.
Nevertheless, a significant limitation of this approach is that diplomatic negotiations will be challenging in non-international armed conflicts. As seen in the case of Afghanistan, countries are generally unwilling to evacuate their own citizens. Therefore, the approach to erga omnes obligations must vary between international and non-international armed conflicts. In cases involving the latter, a better approach is to establish a mission consisting of experts, humanitarian workers, negotiators, and NGOs in the country to evaluate the situation on the ground before either recommending a solution to the relevant authorities or having the mission’s agency take the necessary steps if the situation requires. One example of a necessary step is to distribute aid, such as food, clothing, and temporary accommodation.
Ultimately, this proposal transforms the doctrine of Responsibility to Protect—which has been failing based on current trends—into a legally binding instrument, broadening its scope and enhancing its practical protection of non-combatant civilians. The proposal entrenches proactive justice to protect innocent lives without relying on the benchmark of “manifest failure” by the states in conflict, emphasizing the need for proactive measures rather than reactive ones, leading to better outcomes.
iii. Conclusion
The aforementioned framework is undeniably a bare-bones one that needs to be clothed with in-depth policies that proactively assist IDPs in protecting their livelihoods. There is no justice in delayed justice, and, as this Perspective proposes, it is high time for the international community to protect IDPs—the most vulnerable people stranded in their own country—through multi-centred cooperation rather than through a monocentric approach, integrating both obligations erga omnes partes and erga omnes. The lives, dignity, education, and familial affection of many innocent people could be saved if all the countries are proactive in lobbying for a specific convention on IDPs. Together, we can create a world where the rights and dignity of IDPs are upheld, and no individual is forced to live in fear.
*Divyabharthi Baradhan is an LLB(Hons) graduate at the University of London External Program.