The Emerging Law of Forced Displacement in Africa

Development and implementation of the Kampala Convention on internal displacement

Allehone M. Abebe

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138623927
• eBook ISBN: 9781317210306
• Edition: 1
• Topic: Law
• Subtopic: Immigration Law
• Index: Law

As of the end of 2015, there were 40.8 civilians who had been internally displaced by conflicts and effects of natural disasters in various parts of the world. Internally displaced persons (IDPs) are currently the largest group of persons receiving assistance from some of the main international humanitarian organisations. With the largest concentration of internally displaced persons (IDPs), the African continent has been the worst affected region. While previously IDPs have largely been neglected under international law, the first-ever continental binding treaty on internal displacement, the African Union Convention on the Protection of and Assistance to Internally Displaced Persons (the Kampala Convention), entered into force on 6 December 2012. As of January 2016, 25 states have ratified the instrument while 40 states have become signatories.

This book significantly contributes to the study, policy making and practice on managing internal displacement by presenting the first major systematic examination of the evolution, elements and implementation of the Kampala Convention. It explores the responsibility of the state for the protection of IDPs particularly those who are most vulnerable during armed conflicts, internal strife, natural disasters, human rights violations and other circumstances. The status of ratification of the Convention is reviewed as well as the steps currently being undertaken by governments to implement the Convention. It also analyses the contribution by human rights mechanisms, inter-governmental bodies and UN peace-keeping missions in the implementation of the Convention. The book casts the Kampala Convention in broader institutional and normative developments in Africa and beyond. It demonstrates how concepts such as 'responsibility to protect' and 'sovereignty as responsibility' have begun to make inroads; influencing some of the more progressive instruments adopted by the African Union. It also sheds light on the relationship between the Convention and some regional instruments. In assessing the effectiveness of the Kampala Convention Allehone Abebe argues that the link between the Convention and initiatives on development, human rights and governance in Africa should be fully fostered.

1 Introduction

The world is confronted with the largest and most complex forced displacement of populations since the Second World War. Armed conflicts and communal tensions have displaced more than 60 million civilians, both within their own countries and across international borders. Natural disasters have also fuelled this displacement crisis. Among the displaced civilian population, IDPs constitute the largest group of population with humanitarian needs. IDPs are defined as

persons or group of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or humanmade disasters, and who have not crossed an internationally recognized border.¹

Over the decades humanitarian concern for refugees, those individuals who fled their country as a result of persecution, resulted in the development of an international refugee law and the establishment in 1951 of the office of the United Nations High Commissioner for Refugees (UNHCR) with the mandate to coordinate the response to their welfare. However IDPs are currently the largest group requiring assistance from international humanitarian organisations.

By the end of 2014, 38 million people were internally displaced, up from 33.3 million in 2013. Out of this large number of displaced persons, 11 million IDPs were newly displaced during 2014.² The African continent has been the worst affected region. During the same period there were 11 million IDPs in sub-Saharan Africa. Central African Republic, South Sudan, Nigeria, the Democratic Republic of Congo and Somalia have a significant number of their population internally displaced. In 2015 the number of internally displaced persons increased to 40.8 million. Conflicts remain the main triggers of displacement. Millions across the continent are leaving rural areas to urban centres, seeking better opportunities but often becoming invisible to authorities and service providers. Major public infrastructure and development projects put pressure on local livelihoods and displace communities. The effects of climate change, urbanisation and competition among communities over resources have also become sources of great concern.

The scale and complexity of internal displacement in Africa poses major challenges not only to humanitarian action but also to disaster response and to initiatives on conflict resolution, peace building, development and rule of law. Each year significant resource is committed to humanitarian activities to address the needs of IDPs and to finding solutions. There has also been an international effort to develop international collaboration through the ‘cluster approach’ and to support a further dissemination and implementation of the 1998 UN Guiding Principles on Internal Displacement (the Guiding Principles). Progress in the field of human rights, international humanitarian law, international criminal law and most recently, laws dealing with natural disasters supported this trend. More than ever, the UN are engaged in activities aimed at protecting civilians from harm and risks of violations.

Almost two decades after the adoption of the Guiding Principles, the impact of the international framework on the protection of and assistance to IDPs is at best mixed. Despite the welcome trend of internationalisation of the issue of internal displacement, crafting a robust international legal and institutional instrument for the protection of IDPs remains to be achieved.

Some of the most innovative legal developments concerning internal displacement have taken place in Africa. The first-ever continental binding treaty on internal displacement – the African Union Convention on the Protection of and Assistance to Internally Displaced Persons (also known as the Kampala Convention) – is a significant development. As of January 2016, 25 states have ratified the instrument while 40 states have become signatories. By consolidating existing norms and breaking new legal grounds, the Kampala Convention addresses the protection and assistance needs of IDPs in a continent that is disproportionately affected by the problem of internal displacement. Another significant milestone had been achieved when the Protocol on the Protection and Assistance to IDPs was adopted in 2006. The 2008 Annotations prepared by the former Representative of the UN Secretary General on the Human Rights of Internally Displaced Persons (RSG) duly acknowledges the adoption of the Protocol as an important legal development.³

The relationship between this regional legal development and the fast evolving international protection mechanisms, and its impact on existing protection standards and norms must be sufficiently explained. The Kampala Convention does not redefine the concept of sovereignty. Its provision derives from the premise that the state assumes the primary responsibility for protecting and assisting IDPs. In this sense, they clarify the responsibilities of states and non-state actors with regards to the protection of IDPs, particularly to those who are most vulnerable.

Explaining the evolution, scope and implementation of the Kampala Convention is the main theme of this book. The research explores factors that underpinned the regional codification of legal instruments on internal displacement in Africa. African regional development will be contrasted with past developments at the international level. It seeks to explore why perceptions and developments made the utility of an approach, deemed impractical at the international level, attractive to a regional setting. The question of whether this approach then translates into the effective protection of and assistance to IDPs needs to be answered. Both primary and secondary sources are considered. The drafting of the Kampala Convention took into account current developments and decisions of the African Commission on Human and Peoples’ Rights (ACHPR), of the Inter-American Court of Human Rights, of the International Court of Justice and those of the European Court of Human Rights. Hence, decisions by regional and international tribunals, international and regional treaties and domestic legislation has been consulted as appropriate. The author conducted a series of interviews with experts, humanitarians and diplomats involved in the negotiation. The author has also closely examined the background documents of the drafting of the Convention whenever possible.

The relevance of the Convention’s innovative provisions in addressing contemporary challenges such as displacement induced by environmental stress and climate change will be discussed. The book will further explore the normative and institutional, regional and national factors with the potential of affecting its implementation. The book is organised as follows. Chapter 2 traces the history and modality of formulating the Guiding Principles and examines the factors which have hindered the development of a binding international instrument for the protection of IDPs. Chapter 3 studies the evolution of the African Union’s normative regime applicable to the protection and assistance needs of IDPs, and in particular, it looks at how codification has been rationalised and justified. Chapter 4 will then discuss the drafting background and history of the Kampala Convention. Important aspects of the regional instrument dealing with issues such as the definition of IDPs, the role of states and non-state actors, access to humanitarian assistance, protection of vulnerable groups, humanitarian assistance, and accountability for crimes are discussed in Chapter 5. Chapter 6 will lay out some of the challenges of implementing the Kampala Convention, and discuss how effective reinforcement requires a workable link among mechanisms at the national, regional and international levels, while Chapter 7 will conclude with the salient findings of the research.

Notes

1 Introduction, Guiding Principles on Internal Displacement, 22 July 1998, E/CN.4/ 1998/53/Add.2.

2 Internal Displacement Monitoring Centre. (2015) Global Overview 2015 People Internally Displaced by Conflict and Violence. Available at w­w­w­.­i­n­t­e­r­n­a­l­-d­i­s­p­l­a­c­e­m­e­n­t­.­o­r­g­/­p­u­b­l­i­c­a­t­i­o­n­s­/­2­0­1­5­/­g­l­o­b­a­l­-o­v­e­r­v­i­e­w­-2­0­1­5­-p­e­o­p­l­e­-i­n­t­e­r­n­a­l­l­y­-d­i­s­p­l­a­c­e­d­-b­y­-c­o­n­f­l­i­c­t­-a­n­d­-v­i­o­l­e­n­c­e.

3 Walter, Kälin, The Guiding Principles on Internal Displacement: Annotations, Second Edition (Washington, DC: The American Society of International Law, 2008).

2 Developments and gaps in international law concerning internal displacement

Introduction

The legal framework dealing with internal displacement brings together a myriad of norms from discrete fields of international law. Thus, it is imperative to examine the relevance of key developments, particularly in international human rights and humanitarian law. Treatment of IDPs had for long been considered a matter of state sovereignty. Considerable international developments have occurred since the 1990s. The formulation of the Guiding Principles in 1998 is an important milestone in international standard setting.¹ The Guiding Principles is the first authoritative framework that recognises the rights and freedoms of IDPs.

The following decade witnessed consolidation of these standards. First, the convergence and cross-fertilisation of doctrines across formerly ‘self-contained’ legal fields such as refugee, international humanitarian and human rights law have become commonplace.² Second, there has been a greater appreciation of the need for an effective international response to issues previously considered falling within the domestic jurisdiction of states. Third, though the initial ambivalence to normative standards on internal displacement gradually subsided, the idea of a binding international treaty for the protection of IDPs has largely been resisted. Last, but certainly not least, states have increasingly adopted national legislations and policy instruments specifically dealing with IDPs. These instruments borrow notions from the Guiding Principles. In Africa, Angola, Kenya, Uganda, Sierra Leone, Somalia and Sudan have already adopted national legislations or policies dealing with internal displacement.³ Others are in the process of doing so.

The application of international law to IDPs and its impact on regional and national developments is still evolving. Africa’s recent legal and institutional innovations should not be considered in isolation, but must be examined taking into account the nature and complexity of this evolution. The development by the African Union of a legal framework to deal with internal displacement should lay bare the increasing role of regional organisations. By identifying key developments particularly in the fields of human rights and humanitarian law relevant to the protection and assistance of IDPs, this chapter examines the African Union’s initiative from the perspective of international law. It attempts to examine the relevance of the doctrine of state responsibility, and the basis on which international law for an international response with respect to IDP can be justified. The relevance and limitations of concepts of humanitarian intervention and responsibility to protect will also be analysed. By discussing the codification history of the Guiding Principles, the chapter will identify lessons learnt from international efforts to elaborate an international legal instrument to regulate internal displacement and highlight some of the approaches that were considered in addressing this ‘normative gap’.

Recent developments in international law

Internal displacement is not a concept well-recognised under international law. The latter neither defines IDPs nor grants them special status.⁴ An inquiry into the treatment of internal displacement under international law is also made more difficult by the absence of a legal instrument which specifically deals with the issue.⁵ Notions of sovereignty and non-intervention have been used to shield states’ relationship with their nationals from the purview of public international law.⁶ Whenever the issue of internal displacement is discussed by the United Nations, states often invoke the principle that international response should be ‘based on an appeal b...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Developments and gaps in international law concerning internal displacement
• 3 African regional norms, institutions and internal displacement
• 4 Preparatory work and legal source of the Kampala Convention
• 5 Scope, innovation and limitations
• 6 Implementation and its challenges
• 7 Conclusions
• Bibliography
• Index