The right to home

By Rafia Zakaria
THROUGH the pogroms and cataclysms of history, when populations were chased from their homes and hearths by war or famine or persecution, it was always their right to arrive at a destination, be integrated and accepted into a new settlement.

From when the early Muslims first came to Madina from Makkah and long before that and long after that, the debate on refugees, those who have involuntarily left their homes, has been the basis of legal and ethical wrangling.

Most developments have focused on the rights of these people to obtain asylum, some modicum of acceptance and integration into new communities. Agencies, like the United Nations High Commissioner for Refugees, have ensured that these rights are available to those fleeing conflict and natural disaster in various parts of the world.

There is little discussion on the other hand of the right pertaining to the legal concept of being able to stay or not be displaced where refugees and asylees are concerned.
The human right “not to be displaced” has in the years of its development as a concept, received far less attention than the rights of those already displaced.

In the 1990s, in the wake of the huge displacement crisis in Yugoslavia, the then UN refugee commissioner, Sadako Ogata, spoke for the first time on the “right to remain” and since then the impetus for coming up with legal stipulations that prevent the arbitrary transfer of people from one place to another has been gaining ground.

In 1994, in the Journal of International Law, Prof M. Stavropoulou came up with the following definition for the concept of the “right to stay”: “No one shall be forced to leave his or her home and no one shall be forcibly relocated or expelled from his or her country of nationality or area of habitual residence….”

Since then, various iterations of the right not to be displaced have been introduced and discussed at various international forums to try and show how the rights of indigenous people, the environmentally affected and others, fit in with the emerging understanding of the right to one’s home being considered a basic human right.

The chief criticism on the issue emerging as such has been on the basis that the recognition of such a right would mean a consequent weakening of the rights of migrants who do choose to leave their homes, and even more so of those who are forced to do so and desperately need legal protection in their places of refuge.

However, campaigning on the issue, especially in the context of internally displaced persons, forced evictions and environmental migrants, has gained enough momentum in recent years for over 20 states to have incorporated this right into their national legislation.

In the context of Pakistan, the “right to home” or to not be displaced may have some relevance to the debate on US drone attacks in the northwest. Not only are there hardly any current statistics kept on the exact numbers of people being displaced by US drone attacks in the tribal areas, few advocacy efforts from the Pakistani side have been made to link such possible displacements to the added cost of conflict in the area.

Statistics provided by a 2009 human rights report put the numbers of those displaced by conflict at nearly 800,000. More recent statistics stated the numbers of displaced as a result of conflict to be 200,000 with 60,000 living in the Jalozai camp in Khyber Pakhtunkhwa.

A recent protest held by tribesmen against strikes illustrates the problem, its dimensions murky and unclear because of the difficulties of approximating the numbers that have become displaced from certain areas, and quite possibly in part because of the issue of drone strikes in the larger conflict.

The reason why ascertaining the numbers is important is because they present a human rights argument with which drone strikes by the US can be opposed by Pakistani and international human rights groups. Up to this point, most of the objections to the strikes have been on the basis of the impingement of Pakistani sovereignty and the number of civilian casualties.

In turn, the US has asserted that Article 51 of the UN Charter allows it to conduct these strikes on the basis of self-defence since the 9/11 attacks carried out by Al Qaeda constituted an act of aggression.

While the various UN officials have questioned this principle (which does in effect allow the US to carry out drone attacks against any country harbouring an alleged Al Qaeda operative), the issue has stalled on the contested number of civilian casualties.

If the magnitude of the ethnic strife and upheavals in Pakistan are to receive any international attention, the human right to home, or against displacement must be placed at the centre of the discourse. Doing this would allow migratory patterns traced from Khyber to Karachi to be connected to patterns of ethnic violence.

While respecting the rights of individuals to remain in their homes is first a right to be recognised by national governments, room exists in the discourse of transnational institutions to promote the recognition of this right, and its consequent violation by conflict.

In this sense, the true cost of conflict and the domino effect it produces in terms of driving people from their homes, and creating aftershocks and upheavals in far larger areas than is currently understood, can be included in the debate.

The writer is an attorney teaching constitutional law and political philosophy.
Published in Dawn Newspaper