Refugee research paper

Katrina "Survivors" versus "Internally Displaced Persons": More Than Mere Semantics Author(s): Hon. Cynthia Diane Stephens and Jerome Reide Source: Human Rights, Vol. 33, No. 4 (Fall 2006), pp. 2-4, 25 Published by: American Bar Association Stable URL: https://www.jstor.org/stable/27880548 Accessed: 21-10-2019 15:34 UTC

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Katrina "Survivors" versus "Internally Displaced Persons" More Than Mere Semantics By Hon. Cynthia Diane Stephens and Jerome Reide

In the aftermath of Hurricane Katrina,

important and as yet unaddressed questions linger about the legal sta

tus and rights of hundreds of thousands

of people driven from their homes, whose

lives remain uprooted by the devasta tion. From voting rights to housing, from education to medical care, ex

traordinary uncertainty abounds about the future of those who have returned to

New Orleans and who have not re

turned and are currently living in other parts of the country, uncertain whether

they ever will return to the Gulf Coast. One indication of this country's

enigmatic response to Katrina is evi denced by the very uncertainty of how we refer to those uprooted by Katrina's destruction and chaos. This threshold

question is far from a semantic one. On August 31,2005, Katrina survivors Faye Bussard and Lionel Drummond were called "refugees" by Newsweek, despite their eligibility to vote and their obligation to pay taxes. This term

was likewise used by the New York Times, the Los Angeles Times, and the Associated Press during their initial reporting. Political polar opposites, President George Bush and Reverend Jesse Jackson agreed that "refugee" was not the correct term to describe

those forced to flee the deadly storm.

Bush said they were not refugees but "Americans." Jackson went further, de

crying the use of the term "refugees" as

racist. Most people eventually settled on the term "survivors."

The label attached to the storm's

victims has legal consequences for their treatment and the rights they may as sert. One term used in international

law may well help structure and clarify

the country's understanding of the rights

and status of those people displaced from their homes by Katrina: "inter nally displaced persons" (IDPs). This term was defined in 1998 when the

United Nations (UN) issued its Guid ing Principles on Internal Displace

ment to mark the fiftieth anniversary of the Universal Declaration of Human

Rights (UDHR). The exact language: For the purposes of these Principles, internally displaced persons are per sons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habit ual residence, in particular as a result of or in order to avoid the effects of

armed conflict, situations of gener alized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

Unlike "survivors," those identified as IDPs have rights that are generally accepted in international law. While the United States has never adopted the UDHR, one could argue that through U.S. membership in the UN and adoption of at least ten treaties or conventions on human rights, the Unit ed States has implicitly endorsed the Guiding Principles.

Former US. Attorney General Ram sey Clark framed the argument in 1998:

The United States government pays lip service to the Declaration, but its courts have consistently refused to enforce its provisions reasoning it is not a legally binding treaty, or con tract, but only a declaration. This ig nores the fact that international law

recognizes the provisions of the De claration as being incorporated into customary international law which is binding on all nations.

Ramsey Clark, Address Commemorat ing the Fiftieth Anniversary of the

Signing of the Universal Declaration of Human Rights (Baghdad, Dec. 2,1998), www.thirdworldtraveler.com/Human_

Rights/RClark_50thAnnivUDHR.html. Following this argument, the Guid

ing Principles define IDP rights under international law to include equal treatment, the right to assistance from their government, and a right of volun tary return. The relevant provisions:

Principle One Internally displaced persons shall enjoy equally all the rights and free doms as other persons in their country.

Principle Three Internally displaced persons have the right to request and to receive protection and humanitarian assis tance from national authorities.

Principle Twenty-Eight Competent authorities have the primary duty and responsibility to establish conditions, as well as pro vide the means, which allow inter nally displaced persons 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. Such authorities shall make efforts to fa

cilitate the reintegration of returned or resettled internally displaced per sons. Special efforts should be made to ensure the full participation of in ternally displaced persons in the plan ning and management of their return or resettlement and reintegration.

The Brookings Institution-University of Bern's Project on Internal Displace ment wrote about the protection of IDP rights just four months before Hurricane Katrina:

Because protection is, fundamentally, a legal concept, developing a na

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tional legal framework upholding the rights of IDPs is a particularly important reflection of national re sponsibility as well as a vehicle for its fulfillment. In countries in all re

gions of the world, the adoption of legislation on internal displacement has proved valuable in defining IDPs, setting forth their rights, and establishing the obligations of gov ernments towards them_

Whichever approach is taken, na tional legislation on internal dis placement should be in line with international standards, as set forth in the Guiding Principles.

Brookings Institution-Untversity of Bern, Addressing Internal Displacement: A Framework for

National Responsibility (Apr. 2005), www.brookings.edu/fp/projects/idp/ 2005040l_rirframework.pdf.

The Immediate Response to the Crisis

The Guiding Principles call for pre paration for handling IDPs, a response that differs from merely processing disaster victims who are thought of as refugees or survivors. America was to tally unprepared when one million people were displaced?the exodus from the Gulf Coast was a well-docu

mented chaotic nightmare. The first to leave were those with

transportation and a few dollars. They fled in extended family groups, almost all missing members. Within a day, every Red Cross-'recognized" shelter and inexpensive hotel within 200 miles was full. The August 31,2005, Newsweek reported that Lionel Drummond and his eight-year-old son drove ten hours to get from New Orleans to Baton Rouge, a sixty-mile trip. They drove through Jackson, Mississippi, and Alexandria, Lake Charles, and Kinder, Louisiana, before they found a meal and shelter in a church. Churches like Shrine of the Black Madonna in Hous

ton, Texas, side-stepped the Red Cross official program and offered family housing where they could and gymnasi ums where they had no family housing.

The next wave of IDPs came on buses.

Families were separated. Newsweek re ported that Faye Bussard went to the Astrodome in Houston to find her

111

father and other relatives who she

thought might have been transported there. There were no reliable lists of

who was actually in the Astrodome for weeks after their arrival.

The nation scrambled to re

spond to the un precedented crisis. Houston continues

to have the largest population of IDPs. However, each of the fifty states of fered assistance and shelter, some focus ing merely on emer gency relief, others coming closer to grappling with what it might mean to treat those forced out of New Orleans as IDPs.

Michigan and Louisiana are at op posite ends of the United States, but Michigan offers an example of a pro spective blueprint for coordinated state government efforts for IDPs: On Sep tember 4,2005, Governor Jennifer Granholm pledged to accept up to 10,000 Katrina evacuees and activated

the State Emergency Operations Center.

The governor's office helped to organ ize and coordinate transport, shelter,

and care for approximately 1,700 evacuees registered with the Federal Emergency Management Agency. An estimated 600 nonregistered evacuees were also transported to Michigan by private vehicles. Other actions:

"Michigan Cares, Michigan Gives," a fundraising event on all public radio and television sta tions, was held in conjunction with the American Red Cross. A

toll-free telephone number was provided, and the event helped garner celebrity support to raise

Power to Katrina

Survivors! Katrina "survivors" from New Orleans and the Gulf Coast

march to New Orleans City Hall in December 2005 to present a "Declaration of the People."

money for disaster response.

Michigan committed to honor out-of-state Medicaid cards.

Michigan committed to pay for crisis services provided to Medicare and Medicaid patients transferred from uncertified programs.

Michigan housing was made available for evacuees.

The Michigan Department of Ed ucation sent notices to all superin tendents to facilitate educational

services to any evacuees who needed them.

The Michigan Civil Rights De partment cautioned against use of the term "refugees" and commit ted to provide sensitivity training for service providers helping Kat rina survivors.

When victims of a natural disaster

may have legal rights and interests that need to be explored and protected, a

i

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process that may be facilitated by treat ing them under IDP standards, state and local bar associations can also play a role in assisting IDPs, and many did so after Katrina. For example, the Michi gan State Bar Foundation recently made grants to three nonprofit legal aid programs that provided civil legal services to Hurricane Katrina evacuees

in Michigan. Funding for these grants was received through the State Bar Access to Justice Campaign's "Katrina Appeal," which requested donations from law firms and others.

The Status of Katrina IDPs in 2007

In New Orleans itself, much of the focus remains on the predominantly African American Ninth Ward, which serves as the symbol for tragedy that was

Katrina and the resulting displacement. Spike Lee's riveting documentary,

When the Levees Broke, painted an ugly but accurate picture. Despite $109 bil lion in allocations from the federal

government, much of New Orleans and the Gulf Coast remain physically uninhabitable and uninhabited. The

population is scattered throughout the United States in a new diaspora. Liti gation continues on many issues rang ing from insurance policies to the length

of temporary housing payments to the bulldozing of real property in New Orleans. Just as there was no social

precedent for the crisis, no legal prece dent exists to resolve its aftermath.

The results of the litigation are unac ceptably unpredictable.

Many have suggested that ascribing the status of IDPs and legislatively ascribing IDP principles could help to resolve the issues efficaciously. Let us examine how such an approach would affect two issues: voting rights and resettlement.

Voting Rights and Katrina's IDPs

Despite the fact that less than 30 percent of the population of New Or leans remained in the city in February 2006, the city planned to proceed with an election scheduled for April and

May 2006. In February, a suit was filed to stop the election unless the rights of the displaced?largely African American?were enforced, hi a March 2,

2006, letter to U.S. Attorney General Alberto Gonzales, Bruce Gordon, then president of the National Association for the Advancement of Colored People (NAACP), argued that Louisiana elec tion officials would be violating the 1965 Voting Rights Act by not provid ing alternative polling places for dis placed residents. Numerous proposals were made to afford satellite voting in the states with the largest IDP popula tions. Yet neither the Louisiana governor

nor secretary of state was persuaded. Instead, a cumbersome absentee voter process was implemented.

This decision drew international

disapproval. The UN condemned the election as violating the Guiding Prin ciples, which affirm that "[i]nternally displaced persons, whether or not they are living in camps, shall not be dis criminated against as a result of their displacement in the enjoyment of... [t]he right to vote and to participate in governmental and public affairs_" Perhaps ironically, this principle afford ed Iraqis in the United States the oppor tunity to vote on the formation and form of a new government in Iraq.

Nationally, the leaders of the NAACP, the Urban League, the Congressional Black Caucus, and the National Bar Association opposed the electoral process and joined Jesse Jackson in protest. On April 1, more than 100 or ganizations rallied in New Orleans to decry the electoral process. However, the court battle, based solely on the Voting Rights Act, was unsuccessful. The Louisiana American Civil Liber

ties Union published a voters' guide for the Orleans Parish elections in

April and May of2006 that included a displaced voter affidavit that was to be signed, witnessed by two people, and submitted with an absentee ballot ap plication to vote by mail.

Despite the denial of satellite voting locations, Mayor Clarence Nagin was reelected over Lieutenant Governor

Mitch Landrieu.

Given the slow pace of return to the city, many fear that hundreds of thou sands of IDPs will be culled from the voter roles and erased from the civic

memory before the 2008 election. Re cent legislation proposes giving each displaced qualified elector six years of absentee status. If treated according to international law, the IDPs who claim

New Orleans as their residence could

be afforded the opportunity to partici pate in electoral politics and decision making for years to come.

The Challenge of Resettlement

As of December 2006, the Brookings Institution indicates that the U.S. Postal Service estimate of the New Orleans

population is less than 35 percent of its 2000 census numbers. An overwhelm

ing number of those currently absent

from the city were renters in a city where rental prices have risen 39 per cent since Katrina. Many were laborers in a city and state that have stopped reporting them as being on unemploy

ment rolls. It is morally right that the return of IDPs and the restoration of New Orleans and the Gulf Coast re

gion go hand in hand. Nonetheless, journalist Jonathan

Tilove felt compelled to ask: But does a right of return exist in any legally enforceable or politically meaningful way? The question is much on the minds of activists, lawyers and lawmakers as they scramble to find precedents in exist ing civil rights statutes, internation al law or even the Napoleonic Code, or to make new laws to give those displaced by Katrina the means to get back home. The stakes are enor mous for the hundreds of thousands

of evacuees now in limbo. For local, state and national politics. And for

millions of black Americans, for whom failure would mean that New Orleans, a cultural touchstone and among the blackest big cities in America, will emerge a smaller, whiter place.

Tilove, Jonathan, Can the Battle Cry of Katrina s Diaspora Be Made the Law of the Land? (Nov. 8,2005), stangoff.com/?p=246.

continued on page 25

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Katrina "Survivors versus "Internally Displaced Persons" continued from page 4

Decent housing fit to shelter human beings, gainful employment, adequate health care, public safety, and education are still scarce in New Orleans more

than a year and a half after Katrina. In

fact, as of December 2006, no plan for future public housing in New Orleans had yet been formulated. "It's very clear there are those who are interested

in reconstituting the demographic and literally the face of Orleans [Parish]," said Debo Adegbile, associate director of litigation at the NAACP Legal De fense and Educational Fund Inc.

Ultimately, if there is to be any wholesale effort to return those dis

placed persons and to recognize their

legal status, it will likely require con gressional legislation because of the massive nature of the task. The Con

gressional Black Caucus, Senator Barack Obama, and others introduced bills during the last Congress propos ing solutions to make whole the dis placed victims of Katrina, giving them a right to return to New Orleans, and offering other problem-solving plans. But the 109th Congress did not act on those proposals. It remains to be seen

whether Katrina relief efforts will see

action in the Congress that convened in January 2007.

Given the inherent human rights value of treating disaster victims as IDPs and affording them the legal rights and protections that attach to that label, the United States would do well

to heed the call of the Brookings Insti tution to create a cohesive national re

sponse to future potential displacements. As for the Katrina "survivors," identi

fying them as IDPs will provide a ra tional context for the discussion of how to meet their real needs.

Hon. Cynthia Diane Stephens is a judge of the Third Circuit Court in Detroit, Michigan. She is chair of the Standing Committee on Justice Initia tives of the State Bar ofMichigan and has served on state task forces and commissions addressing alternative dispute resolution, prison overcrowd ing, and racial and ethnic bias. She as sisted in the creation of Operation Safe

Harbor, which housed more than 150

IDPs at the Shrine of the Black Madonna in Houston, Texas. Jerome Reide, a long-time civil rights activist, attorney, political scientist, and jour nalist, is vice-chair of the Committee on Civil Rights and Equal Opportunity of the ABA Section of Individual Rights and Responsibilities.

humanrights hero continued from back cover

abandoned in the Superdome. But there was a sense of de nial in the country. Surely, the nation had moved beyond the consideration of race in response to a disaster.

One set of news photographs soon made it impossible to ignore the role that race played after the hurricane. Published on a widely viewed website the day after Katrina hit, one Associated Press photo showed an African American male wading through water with groceries the photo caption said he "looted" from a store. On the same day an Agence France Press photo showed two white people "finding bread and water from a local grocery store." The difference in the two

captions touched off a firestorm of controversy. Debate over whether African Americans were being targeted heated up as police cracked down on looters and President George W. Bush urged "zero tolerance of people breaking the law."

Various people began to demand that the nation recognize that response to the disaster reflected less urgency and

compassion because so many of the victims were African American. They rocked the nation from its complacent moorings that focused more attention on other aspects of

Fall 2006

the disaster?the tragic property loss of nice homes, boats, and cars. These heroes likened the image of thousands of African Americans in the Superdome in squalid conditions to the images of slavery from another century. They have continued to speak up about the lack of progress in providing restored housing and services in the poorer areas of New Orleans, which were predominately African American.

It is difficult to determine who spoke up first, so this recognition is intended for all who spoke out. Damon Hewitt, an NAACP Legal Defense Fund lawyer, was one of the first voices of outrage, telling ABC News, "It's very difficult to imagine this happening to folks who are not poor, to folks

who are not African American." Another was Rep. Elijah Cummings (D-Md.), a member of the Congressional Black Caucus, who told reporters, "We cannot allow it to be said that the difference between those who lived and died... was

nothing more than poverty, age, or skin color."

For these human rights heroes, the fight is not yet over.

Stephen J. Wermiel is associate director of the Marshall Brennan Constitutional Literacy Project, a program of law students teaching in Washington-area public schools through American University's Washington College of Law. He was the Wall Street Journal s Supreme Court correspondent

from 1979 to 1991.

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