This article will be published in a forthcoming issue of International Legal Materials of the American Society of International Law.
An internally displaced Somali woman holds her daughter outside their makeshift shelter at a camp in the outskirts of Mogadishu.
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More than seventeen million individuals, including at least eleven million internally displaced persons (IDPs), are uprooted and on the move in Africa at the present time. Virtually all of these people have been forced or obliged to flee their homes and communities as a result of conflict, situations of generalized violence, human rights violations, natural disasters, and environmental degradation. Many of the displaced, both refugees and those who remain within the borders of their own countries, exist on the margins of society and are vulnerable to significant human rights abuse as a result of their displacement. Situations of mass displacement, like those confronting approximately twenty countries in Africa, can also put considerable stresses on affected communities and negatively affect how states are governed and develop. Displacement may also give rise to conflict or undermine peace building efforts. Solutions to displacement therefore require complex frameworks and responses that take into account the humanitarian, human rights, development, and security dimensions of this phenomenon.
The African Union Convention on the Protection and Assistance of Internally Displaced Persons is one such framework. It was adopted by African heads of state and government to address the root causes and challenges of forced displacement on the continent at a Special Summit in Kampala, Uganda on October 22-23, 2009. Based on the United Nations Guiding Principles on Internal Displacement, the Convention seeks to protect the fundamental rights and freedoms of internally displaced persons, facilitate durable solutions to their displacement, and ensure that these individuals have an opportunity to lead dignified and productive lives. It also establishes a legal framework for cooperation among states, international and regional organizations, and civil society and other non-state actors to combat displacement and it consequences.
The Convention affirms the leading role and responsibility of national governments to protect and assist IDPs and prevent situations of internal displacement in the region and within their individual countries. As such, the Convention strengthens the principle of “sovereignty as responsibility,” which asserts that national sovereignty includes the responsibility of a state to provide for the welfare of its citizens and to relieve the humanitarian consequences of conflict. In addition, those who have endorsed the Convention have also explicitly recognized the link between promoting peace, security, and development on the continent and the need to mitigate the plight of the displaced. In this sense, the Convention contributes to Africa’s overall security and development architecture in addition to serving as the centerpiece of regional responses to one of the continent’s most pressing humanitarian and human rights crises.
The Convention is significant for a variety of other reasons. It is the first instrument intended to legally bind an entire region on matters related to preventing situations of mass displacement and to resolving the vulnerabilities and needs of those who have been displaced. While other regional organizations, such as the Council of Europe and the Organization of American States, have adopted resolutions calling upon their member states to protect the rights of the internally displaced, these instruments are non-binding. Although another binding instrument related to IDP protections exists in Africa—the Protocol on the Protection and Assistance to Internally Displaced Persons, adopted by the International Conference on the Great Lakes Region (ICGLR) in 2006—it is only binding on the eleven ICGLR member states at a sub-regional level.
Another ground-breaking aspect of the Convention is its formal recognition of displacement triggers other than armed conflict and situations of generalized violence. The Convention recognizes and embraces a much more comprehensive list of factors that force people to flee their homes and communities. Specifically, the Convention obligates state parties to protect those who have been displaced as a result of both natural and man-made disasters. Displacement caused by development projects, including exploration and exploitation of natural resources, is also prohibited by the Convention.
Moreover, the Convention makes a significant contribution to the law of internal displacement by recognizing the rights of IDPs and the obligations states have toward them during all phases of displacement—from prevention, to treatment of persons while they are displaced and through their return, local integration, or resettlement. Among its many provisions, for instance, the Convention affirms the panoply of rights enjoyed by IDPs as individuals under human rights and humanitarian law. These include the right of all persons to be protected from arbitrary displacement and the right of those displaced to humane treatment, non-discrimination, equality, and equal protection under the law during their displacement. The Convention also recognizes the right of displaced persons to make informed decisions to return to their original homes or to resettle elsewhere in the country.
As a protection instrument, the Convention is focused first and foremost on elaborating the obligations of state parties. In this respect, the Convention sets forth a number of concrete measures to be taken by national authorities to prevent displacement and protect and assist those who are arbitrarily displaced. These measures range from complying with international human rights and humanitarian law, to developing and implementing early warning and disaster management systems to deal with complex emergencies that can forcibly displace people from their homes. In addition, the Convention obliges state parties to prohibit displacement and its use as a means of warfare, i.e. ethnic cleansing. Similarly, it requires that state parties criminalize acts of arbitrary displacement and prevent discrimination, inhuman and degrading treatment, arbitrary detention, and sexual and gender based violence. Notably, those bound by the Convention are also obligated to ensure that individuals who commit acts of arbitrary displacement are held accountable. This obligation extends to holding non-state actors, such as insurgents and rebel groups, private military contractors, and multinational corporations, accountable for arbitrary displacement.
In the same vein, the Convention requires armed groups not affiliated with the state to protect and assist internally displaced persons in areas under their effective control. Moreover, non-state actors and armed groups—like formal state parties to the Convention—are called upon by the Convention to provide humanitarian organizations with access to the displaced and facilitate the delivery of relief supplies to those in need. Assistance to local communities that host internally displaced persons is also mandatory under the Convention.
The Convention also requires that national authorities make funding available to assist IDPs and designate institutional focal points in each of their countries to facilitate coordination among relevant government agencies and with local and international partners on issues related to internal displacement. National authorities may, for instance, designate an existing government ministry or agency to take responsibility of IDPs or create a special commission or working group to coordinate government activities. The Convention also obligates governments to provide compensation and other reparations to remedy the harm suffered by persons as a result of their displacement.
No multilateral legal instrument is perfect, and the Convention does have limitations. Concerns over the lack of effective enforcement mechanisms and insufficient guarantees for equality, non-discrimination, and other human rights have been raised. Similarly, there is some question regarding the extent to which non-state actors and armed groups called upon by the Convention to protect IDPs can be bound by its provisions. Nevertheless, the Convention, which has benefited from the input of international experts, is considered to be generally consistent with international standards and a potentially effective instrument to address displacement and its consequences in Africa.
The Convention will enter into force as a legally binding instrument once it has been ratified by fifteen states of the African Union. At the present time, however, none of Convention’s seventeen original signatories, including the three states that signed the Convention after the Special Summit in Kampala, have completed ratification in accordance with their national law and procedures