170. Article 13(2) of the Universal Declaration of Human Rights, Article 12(4) of the International Covenant on Civil and Political Rights, the Fourth Protocol to the European Convention on Human Rights, Article 22(5) of the American Convention on Human Rights, and Article 12(2) of the African Charter on Human and Peoples’ Rights recognize the right of an individual to return to her/his home country. For example, Article 12(4) of the International Covenant on Civil and Political Rights provides that, “No one shall be arbitrarily deprived of the right to enter his own country.”
171. Similarly, Article 13(1) of the Universal Declaration of Human Rights, Article 12(1) of the International Covenant on Civil and Political Rights, the Fourth Protocol to the European Convention on Human Rights (Article 2(1)), Article 22(1) of the American Convention on Human Rights, and Article 12(1) of the African Charter on Human and Peoples’ Rights guarantee freedom of movement within a state, which would include the right of internally displaced persons to return to their home. For example, Article 12(1) of the International Covenant on Civil and Political Rights provides that,
“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”
b. “Non-refoulement” and “voluntary return”
172. A fundamental precept of international refugee law is that of non-refoulement.
Article 33 (1) of the 1951 Convention Relating to the Status of Refugees10 provides that:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
10See also the 1966 Protocol relating to the Status of Refugees which extends the validity of the Convention.
173. This provision establishes the principle of voluntary repatriation. As a direct consequence of this provision, refugees will normally only return to their countries when they wish to do so. In order for a refugee to make an entirely voluntary decision about return, s/he must be provided with accurate and up-to-date information on the situation in their country and home region. This information allows the refugees to make an informed decision. Other factors, such as assistance with transport and resettling, are also important in the decision-making process and the UNHCR, in particular, will often facilitate voluntary repatriation by offering various forms of assistance.
174. The Convention and Protocol relating to the Status of Refugees do not apply to IDPs. The right to freedom of movement, however, applies to every person within his or her own country and means that IDPs should have the same choice voluntarily to return home (see paras. 20-21 and Article 12 of the Covenant on Civil and Political Rights).
175. In most situations displaced persons and refugees who have accurate information are they themselves the persons best placed to decide whether it would be safe and appropriate to return home. Knowing whether a return is voluntary will provide HROs with important information on the threats that may confront returnees and IDPs.
2. Types of return
176. In spite of the international legal guarantees of voluntary return and freedom of movement within a country, the principle of voluntary repatriation is not always fully respected. On some occasions, despite the efforts of the UNHCR, countries of asylum may violate the norm of “non-refoulement”, compelling refugees on their territory to return home. Sometimes groups of refugees may return home because their place of refuge becomes more dangerous than the risks they face at home.
177. There are a number of different types of return, often related to whether or not a return is voluntary. The extent to which the return is voluntary will usually affect the manner in which the return takes place and, consequently, the activities of a human rights field operation.
178. A voluntary return process should be characterized by the planned and relatively organized nature of the return. There is usually time to prepare adequate transport and other necessary facilities. The numbers and often the names of returnees and IDPs are well documented, making it easier to keep track of individuals and families.
179. Where the principle of voluntary return is not respected, displaced people may be forced to return. Also, there may be situations in which refugees or displaced persons participate in a spontaneous return. Such returns are often very disorderly; they may involve the movement of very large numbers of people. There may be insufficient transport, food supplies and medical care available. Massive forced returns, in particular, can lead to enormous suffering and even death for many returnees and IDPs, and especially for any vulnerable groups within the returnee community (see section D: “Vulnerable groups”). The type of return that takes place will influence the role the human rights operation will fulfil during the return. For example, there are less likely to be human rights abuses during an orderly and voluntary return.
3. Situation in the home country/region within which the return occurs
180. The political situation in the country or region to which people return will also have a very marked effect on the conditions and success of the return. People who return to a region in which an armed conflict is being waged are far less likely to be able to settle durably, and in safety and dignity, than people who return to a peaceful situation and as part of a political settlement, for example.
4. Activities during the return
181. During the return area offices will generally need to monitor the human rights conditions accompanying the movement of the displaced persons.
182. Monitoring activities should include:
a. Presence at the border and other control points
v To make sure that all of the displaced people are allowed through and that any searches of personal belongings are conducted with respect.
v Returnees and IDPs should be permitted to bring their personal belongings back home without the imposition of customs or other limitations. No fees should be charged to returnees and IDPs for the privilege of crossing borders or other checkpoints.
v Area offices should make sure that border authorities do not impose unreasonable or discriminatory health strictures on returnees and IDPs, their belongings or vehicles.
v Patrols along roads used by returnees and IDPs who are on foot to ensure that there is no threat to the returnees and IDPs from the local population or the security forces.
v Presence at any transit centres on the route.
v Patrols in the towns and villages of origin to monitor how the new arrivals are received.
b. Maintaining constant contacts with authorities
v HROs should, by their presence, by contacts with authorities, and by other means, seek to discourage such problems as harassment, physical or verbal threats, bodily harm to the returnees and IDPs, or discriminatory arrests.
v They should also monitor problems of dehydration, cold, lack of food, exhaustion, illness, etc., and alert relevant aid agencies and services to help address these problems.
c. Coordinating with the potential human rights work of partner organizations
v An essential element of monitoring the return of displaced people will be coordinating the work of the human rights field operation with that of other international organizations participating in the return process.
v In addition, where there are very large numbers of people returning it may be necessary to redeploy HROs within the operation or to recruit additional officers. These issues are addressed below in section H: “Human rights field operation: structure of work with returnees and IDPs”.