New hopes and challenges for the protection of IDPs in Africa: the Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa.

AuthorGiustiniani, Flavia Zorzi

I witnessed the historic moment of the adoption of the Convention on the Protection and Assistance of Internally Displaced Persons in Africa. The importance of this Convention cannot be underestimated. Building on the UN Guiding Principles on Internal Displacement it is the first legally binding IDP-specific treaty covering an entire continent. The Convention is a tremendous achievement and a beacon of hope for the almost 12 million people in Africa internally displaced by conflict and the many more internally displaced by natural disasters, and hopefully serves as a model for other regions, too.

I commend the African Union for its leadership in developing this Convention. I urge all African States to ratify it and implement its provisions, and I call on the international community to seize this momentum and to lend all support needed to its implementation. (1)

INTRODUCTION

One of the most pressing challenges the international community is experiencing today in the context of population movements is the problem of internal displacement. While not being a new phenomenon, it reached worrying dimensions after the end of the Cold War. Today, the sheer number of internally displaced persons (IDPs) in the world coupled with the human rights violations that they face show at once the dimension and the gravity of the problem. Situations of mass displacement generally put considerable stress on affected communities and negatively impact the overall stability and development of the territorial State. (2) In some cases, displacement may also fuel tensions and conflict and consequently, if not properly addressed, frustrate peace building efforts. (3)

Unlike refugees, who fall under the protection of international instruments such as the 1951 UN Convention relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, and who have a specific UN agency--the UNHCR--to assist them, IDPs cannot rely on comparable standards or mechanisms for their protection. (4) Their own State, while having the primary responsibility to assist and protect, is often unable or unwilling to fulfil its duty and, owing to sovereignty concerns, hampers international actors from acting in its place. (5)

In order to come up with a solution to this problem the UN Commission on Human Rights in 1992 entrusted an independent expert, the Special Representative of the Secretary-General on IDPs, Mr. Francis Deng, to examine existing international standards of human rights, humanitarian and refugee law, and their application to the protection of internally displaced persons. (6) The outcome of the work conducted by Deng with a team of international legal experts was a thorough compilation and analysis of legal norms pertaining to internally displaced persons. (7) The study's conclusion was that "[w]here the analysis shows that the needs of internally displaced persons are insufficiently protected by existing international law, it is important to restate general principles of protection in more specific detail and to address clear protection gaps in a future international instrument." (8)

In response to a request by the Commission on Human Rights to develop an appropriate framework for the protection of the IDPs, (9) the Representative submitted a non-binding document in January 1998: the Guiding Principles on Internal Displacement. (10) The Principles are based on existing international humanitarian law, human rights law, and refugee law, and they seek to clarify the gaps of the law as codified with the overall aim of protecting the internally displaced in all three phases of displacement (i.e. before, during and after displacement). (11) They were meant to provide guidance to State authorities, international organizations, and all other relevant actors in providing assistance and protection to IDPs. (12)

At the time of their elaboration, the option of adopting a hard law instrument was rejected for a variety of reasons, the most weighty probably being that the drafting of a treaty would be a time-consuming process and the expected opposition of many States toward such an enterprise. (13) The choice of a non-binding document, strongly supported by Deng, proved to be the most practicable solution, and over time this choice has undeniably contributed to the acceptance of the Principles by many States. (14) However, to the extent that the Principles do not merely reproduce existing norms, States are not formally bound by them. To make the Principles effective, governments must incorporate them in national domestic laws and policies on displacement. (15)

General Remarks on the A U Convention for the Prevention of Internal Displacement and the Protection of and Assistance to Internally Displaced Persons in Africa

Against this background, the recent initiative taken by the African Union (AU) to draft the Convention for the Prevention of Internal Displacement and the Protection of and Assistance to Internally Displaced Persons in Africa is an important development because it demonstrates the continued progress and support for IDPs in the region. The AU Executive Council decided to draft a treaty focused specifically on the internally displaced in 2004. (16)

Following the meeting of a Group of experts in Addis Ababa from April 1113, 2006, a draft text was discussed and finalized in June 2008. After some major amendments, the text was ultimately signed on October 23, 2008, at the end of a Special Summit of the AU held in Kampala, Uganda. (17) This achievement has been warmly welcomed by the UN Special Representative for IDPs, Walter Kalin, (18) as well as by other humanitarian organisations. The Convention sends an important message to the international community; the drafting of this text shows that Africa intends to deal with internal displacement in a much more serious and proactive manner. (19)

The problem of internal displacement is particularly acute in Africa, which hosts approximately 11.6 million IDPs--almost half (45%) of a global total of around 26 million. (20) The gravity and urgency of the problem were one again brought to the fore by recent events in Sudan, a country which unfortunately boasts the largest population of IDPs in the world (around 5 million). (21) Last year in Darfur, a region that already had a population of 2.7 million IDPs, the situation dramatically deteriorated when 317,000 more people were displaced, and the Sudanese government expelled 13 international aid agencies operating in the region. (22)

The Kampala Convention is not the first step taken by the African Union to tackle the problems of population movements in Africa. In 1969, the Organization for African Unity made the first attempt by drafting the Convention Governing the Specific Aspects of Refugee Problems in Africa. (23) This treaty, which codifies a broad definition of the term "refugee," (24) inaugurated the era of the "open door policy." (25) In the wake of liberation struggles and the subsequent eruption of wars of secession, various African States, moved by a strong ideological call for pan-African solidarity, accepted and gave shelter to significant numbers of refugees fleeing from those conflicts. (26)

During the 1970's and 1980's, changing attitudes toward refugee protection and the proliferation of violent internal conflicts produced a dramatic increase in the population of internally displaced persons, which in turn led to a shift in focus from external to internal population movements. Because uncontrolled groups of IDPs began causing serious internal instability during this time, threatening the peace and security of villages, countries, or even entire regions, African institutions were prompted to devise legal frameworks to protect IDPs. (27) The solutions that were created during this time mostly corresponded to the "African solutions to African problems" approach. (28)

The next major step taken to prevent internal displacement was made at the sub-regional level during the International Conference on the Great Lakes Region. With a goal of ending the endemic conflicts and consequences thereof prevailing in the region, the eleven Member States of this conference signed a Pact on Security, Stability, and Development in December 2006. (29) As far as displacement is concerned, the Pact acknowledges that policies addressing the plight of refugees and IDPs are integral to restoring peace and stability, and includes two protocols specifically dedicated to the protection of IDPs: the Protocol on the Protection and Assistance to Internally Displaced Persons (30) and the Protocol on the Property Rights of Returning Persons. (31) By signing this instrument, the Great Lakes States, (including three of the countries with the most significant IDP populations on the continent: Sudan, Uganda, and Democratic Republic of Congo) (32) committed themselves to adopting and implementing the Guiding Principles at the national level. The Protocol also endeavours to adapt the Guiding Principles to the characteristics of internal displacement in the region by precisely establishing the scope of the responsibilities of States and by setting up a regional mechanism for monitoring the protection of IDPs.

Compared to the Great Lakes experience, the African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa, otherwise known as the Kampala Convention, represents even further progress. Through its adoption, the African Union, while acknowledging the continuing relevance and role of the Guiding Principles, devised a completely distinct and binding legal framework that takes into account African specificities in internal displacement. (33) At a time when the main challenge to internal displacement is still the inability or the unwillingness of the majority of States affected to take on their responsibilities, the importance of such a development cannot be understated. Firstly...

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