What happens to people displaced from countries that don’t exist? Those displaced from ISIS- or Donetsk People’s Republic (DNR)-controlled territories have had to confront this very question. They are, as a technical matter, categorized as Internally Displaced Persons (IDPs) rather than refugees, due to international non-recognition of the states from which they have been displaced; and as such, these individuals have been particularly affected by the lack of consensus on how to deal with IDPs. The experiences of individuals displaced during now-frozen conflicts following the fall of communist regimes in the Balkans and Caucasus suggest that they are unlikely to enjoy many of the legal protections afforded to refugees. The combination of a weak international legal regime to govern IDPs and de jure states’ political disincentives to integrate them suggests that they will not enjoy such protections until either a legally binding IDP regime is developed or the frozen conflicts become resolved.
Displaced persons in the post-Soviet space came into focus in January 2016, when the International Criminal Court authorized an investigation into war crimes committed during the short but devastating 2008 war fought in the internationally recognized territory of Georgia. The 2008 war was merely one episode in a decades-long conflict that began in the early 90s. As the Soviet Union collapsed, two minority-dominated enclaves along Georgia’s Russian border– South Ossetia and Abkhazia–waged separatist wars against the Georgian state with what is widely accepted to have been Russian help. The conflicts remain frozen, as the international community still recognizes the two regions as part of Georgia. However, in the decades following these wars, South Ossetia and Abkhazia have developed as independent states in all but name. The Georgian state retains virtually no control over them and the threat of Russian retaliation shields them against Georgian incursion. In 2008, when the Georgian government attempted to take back South Ossetia, Russia intervened to defend the separatist territory, devastating Georgia’s infrastructure and displacing 192,000 in what is regarded by some as an ethnic cleansing campaign against Georgians living in the territory. Combined with the up to 300,000 displaced in the 90s wars, the individuals displaced by conflict in Georgia totals to up to 492,000, the majority of which were displaced into Georgia proper. As of December 2014, up to 232,700 individuals remain displaced within Georgia proper—a population larger than any city in Georgia outside of the capital.
Similar conflicts took place elsewhere in the Former Soviet Union in the 90s. Russophone rebels in Moldova carved out a de-facto independent state along Moldova’s border with Ukraine known as Transnistria; Armenian irredentists in a region of the internationally recognized territory of Azerbaijan, Nagorno-Karabakh, waged a war against the Azeri state, which displaced over 600,000. Like the Abkhaz and South Ossetian conflicts, these conflicts remain frozen, with the separatist entities enjoying de-facto independence. In the case of Nagorno-Karabakh, the province has become increasingly integrated with the Armenian state; Nagorno-Karabakh frequently appears as an integral part of Armenia in Armenian maps and even produced an Armenian president.
The continuing decades-long plight of individuals displaced by these conflicts throws into high relief the absence of an adequate legal framework for addressing their problems. Because the de facto states from which they have been displaced are considered armed rebel groups and not states under international law, these individuals are not accorded the legal protections associated with the international refugee regime. Rather, these individuals remain merely IDPs.
The international legal framework governing IDPs is notoriously weak. In a 2006 report, the ICRC noted that “[t]here is no legally binding definition of an “internally displaced person.” … Similarly, there is no definition of the end of displacement and there are no commonly agreed criteria for determining when a person ceased to be an IDP.” Thus, unsurprisingly, little binding law exists to govern how states should deal with IDPs. The OCHA’s 2001 Guiding Principles on Internal Displacement and the IASC’s 2010 Framework on Durable Solutions for Displaced Persons work to fill this lacuna. However, although these documents give states and intergovernmental organizations a useful tool for understanding how to help IDPs, they are neither legally binding do they codify existing customary international law.
On the one hand, IDP status may come with some advantages. For example, the displaced individuals’ IDP status makes the asylum question moot upon their entry into the de facto and de jure states-proper. On the other hand, such individuals are not protected by basic principles of the international refugee regime. For instance, the international refugee regime establishes that refugees should be presented with one or more of three durable solutions to address their status: voluntary return, integration, or resettlement, the second of which forms an “integral, albeit indirect” part of the Universal Declaration of Human Right’s Art. 14 (1) guarantee of the right to seek and enjoy asylum from persecution.
Yet, the frozen nature of these conflicts puts the de jure states in a political bind injurious to the plight of these displaced persons which circumscribes their access to solutions to which they would otherwise be legally entitled under the international refugee regime. For example, the Azeri government has been unwilling to invest resources in having persons displaced from Nagorno-Karabakh integrate into their new homes in Azerbaijan proper because it fears such efforts would amount to acceptance of an otherwise ambiguous legal status quo regarding the status of Nagorno-Karabakh. Such a concession would be politically risky and would likely elicit an emotional response from Azeris, 97% of whom would be “willing to use all options, including using the military, in order to protect the country against Armenian occupation.” Rather, the Azeri government has an incentive to treat such displacement as temporary until return becomes viable—which may never happen.
This combination of political disincentives to find appropriate and durable solutions to the plight of persons displaced by frozen conflicts and the weak international legal regime protecting IDPs forces such individuals into an indeterminate state. De jure governments are reluctant to protect them for fear of acknowledging the de facto independence of a separatist state, and no international legal regime sufficiently binds such governments to act to integrate them – despite that voluntary return and resettlement are obviously not viable or available alternatives.
Two solutions to this conundrum are immediately apparent, but neither seems readily obtainable. One would be to develop legally binding definitions of IDPs and concomitant obligations upon states to protect them. The other would be to unfreeze these conflicts and come to a definitive conclusion on the status of the de facto independent separatist regimes. Otherwise, these displaced persons are likely to remain trapped in an international legal limbo.
Evan Welber is a JD student at Yale Law School focused on public international law and comparative constitutional law. He has worked in the highest courts of Brazil, Hong Kong, and Bosnia and Herzegovina as well as at the International Criminal Court, the UN Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory, and Human Rights Watch.
 https://www.theguardian.com/world/2008/aug/19/russia.georgia; https://web.archive.org/web/20081212205224/http://amnesty.org/en/library/asset/EUR04/005/2008/en/d9908665-ab55-11dd-a4cd-bfa0fdea9647/eur040052008eng.pdf