The Kampala Convention: A Significant Achievement of AU in Setting Norms
Mehari Taddele Maru
The Kampala Convention and its Contributions to International Law, authored by Mehari Taddele Maru is published by Eleven International Publishing on 22nd May 2014.
This article identifies the key contributions of the Kampala Convention through legal analysis and interpretation of its provisions. More importantly, it sketches the most notable and significant contributions of the Kampala Convention in terms of the protection gap it seeks to fill, and its novelty as well as its contributions to the international, regional and national laws governing internal displacement.
A Brief Summary of the Kampala Convention
Apart from the preamble, the Kampala Convention has 23 articles. The preamble offers the rationale for developing the convention; it contextualizes the international norms such as the GPID to the situation of internal displacement in Africa. Presenting the legal underpinnings within the AU and the UN system, the preamble furnishes the legislative intention of the Kampala Convention. It recognizes the need for a binding instrument to govern internal displacement in Africa. While removing the legal lacuna in the protection of IDPs has motivated the AU to develop the Kampala Convention, the disastrous impact of internal displacement on peace, security, environment and development of countries was another important justification necessitating such a treaty.
The remaining provisions of the Kampala Convention cover all the three phases of internal displacement— prevention of displacement, protection and provision of assistance to IDPs during displacement, and durable solution to IDPs in the form of return, relocation or resettlement. The Kampala Convention offers distinctively tailored protection to IDPs. It is comprehensive in terms of covering all phases and causes of internal displacement. It has a human rights-based approach designed to meet the specific needs of IDPs. It details the responsibilities of all actors who come into contact with IDPs. The duties of the AU, UN and RECs, CSOs and aid organizations are enumerated.
The Significance of the Kampala Convention
Due to various causes including conflicts and disasters, Africa faces serious humanitarian challenges as a result of protracted displacement of tens of millions of Africans. Globally, no region is more plagued with the problem of protracted displacement than Africa. While the number of external displacement (refugees) is on the decline in Africa, internal displacement is increasing due to election related crises and popular protests. As witnessed in recent months, one of the negative consequences of the North Africa uprising have been the deaths and forced migration of civilians. Nationals and foreigners residing in these countries are being displaced in large numbers. The causes of displacement are various in kind. While conflict is the main cause for majority of displacement, equally, forced migration is triggered and accelerated by climate change as evidenced by frequent devastating droughts, floods, famine and desertification. Poor preparedness to disasters and increased infrastructural development projects add to the vulnerabilities of communities to displacement. IDPs leave in extreme circumstances that increase their vulnerabilities to health, security and other risks.
Besides to the large volume of IDPs, the plight of and life-threatening conditions under which IDPs live calls for an urgent, more robust and comprehensive response to the problem of internal displacement. To address the plight of large number of IDPs, and mitigate the negative impacts of protracted displacement on peace, security and environment, under the leadership of the Department of Political Affairs of the AU Commission organized a series of consultations and developed the African Union Convention on the Protection and Assistance of Internally Displaced Persons (Kampala Convention).
The causes of displacement are not only multifaceted, mostly overlapping and reinforcing each other. While long distance mobility, due pull factors such as better employment opportunity in the place of destination like mining areas will increase, displacement due to the push factors such as human insecurity, natural and man-made disasters such as flood, and drought will constitute the main reasons for increase.
Causes of Displacement in Africa
Three of the five globally biggest IDP populations are in Africa. Sudan, with more than 5 million IDPs, hosts the highest number of IDPs globally. Sudan alone constitutes more than 20% of the global total IDP population, while DRC constitute almost 12 % of the global total IDP population. The above figures constitute more than 10% of the total population of each country. Eleven African countries—i.e., Sudan, Somalia, DRC, Nigeria, Kenya, Uganda, C?te d′Ivoire, Ethiopia, Chad, CAR, Burundi, constitute more than 12 million of the global total 26 million IDPs, which is 45 percent of the total IDPs. Consequently, over 50 percent of the World’s IDPs live in Africa. Majority of IDPs are in countries with the lowest Human Development Index.7 Special economic zones, extractive mineral explorations and mining are now and will remain in the future as the most common causes of displacement in Africa.
Trends in Displacement
The trend is that the number of external displacement (the number of refugees) is on the decline in Africa, while internal displacement has shown a sharp increase from 2007-2009. Globally, while there are more than 26 million IDPs due to CID, there are more than 14 million refugees and asylum seekers. In comparison, there are 11 million more IDPs due to conflicts compared with refugees. Africa hosts some 3.25 million African refugees and asylum seekers. Of the 14 million refugees, about 3.25 million refugees are in Africa, constituting 25 percent of the global total. If we add the NDID and DID in Africa, the number of IDPs is four times bigger than refugees.
While the number of refugees is declining, IDP population is increasing at an average rate of 5 percent. The reasons for the decline in the volume of refugees in Africa relate durable solution through local integration, change in the routes and increased internal displacement, better peace and stability, and settlement opportunity by third countries. For example, in the past few years, about 1.7 million refugees either returned to their home or settled locally. Repatriation programmes to Sudan, Somalia, Togo, Mauritania, Liberia, and Cote D’Ivoire was carried out in a large number.
In contrast, internal displacement has increased sharply in some areas such as Somalia and Sudan. In the near future, this may increase dramatically as a result of preparation towards election in 2009, and referendum in 2011 on the fate of Southern Sudan, whether it will remain part of Sudan or become independent. Areas in Southern Sudan and neighbouring regions, including South and North Kordofa, are affected seriously by CPA.
Climate-change related migration or NDID indicate more of internal than external displacement. In addition, there will be an increased short-distance displacement and high mobility globally and within Africa. International Federation of Red Cross and Red Crescent Societies (IFRC) confirms that the while of internal displacement increase, external displacement may decrease as many victims of climate change triggered crises move to nearby locations.12 Nonetheless, slow-on set climate change related displacements stressors such as drought would be responsible for displacement of many Africans than extreme climatic events such as storms. In the past three decades, there were twice more persons affected by drought than by storms.
Legal and Institutional Protection Gap: Urgent and long-standing needs of IDPs
The need to fill the protection gap was urgent because a) the gravity of the plight of the victims of protracted displacement; the profound negative impact of internal displacement on the fundamental human rights of IDPs, sweeping infringement on the collection of human rights as a result of being uprooted and its disastrous consequences on their livelihood; This creates special vulnerabilities and specific needs for IDPs thereof an urgent need to provide special protection; b) the sheer number of IDPs on the African continent is the second most cause of urgency. On the narrow definition of IDPs, limited to Conflict-induced Displacement (CID), Africa hosts close to twelve million IDPs, while on a more inclusive definition that encompasses Development-induced Displacement (DID), Natural Disaster-induced Displacement (NDID) and Man-made Disaster–induced Displacement (MDID), it exceeds twenty million; c) the sheer number and the trend of increasing IDPs over the past one decade or so unmistakably indicates an alarming increase in the number of IDPs in the near future due to NDID and DID; d) the gravity and large number of IDPs aside, the disastrous impact of protracted internal displacement on peace, development and environment adds to the urgency and importance of removing this protection gap. These major facts attest the urgency of filling this serious protection lacuna in international law.
The need to remove this grave shortcoming in international law is long-standing because, despite their grave plight and sheer number, so far there is no consolidated and binding instrument addressing the specific needs and distinctive circumstance of IDPs. International law has made great strides in offering protection to other vulnerable groups facing high risks to life and livelihood and with special needs. For example, Human Rights Law (HRL) through Convention on the Rights of the Child (CRC) offers comprehensive and binding protection to the child in the light of the distinctive and high vulnerability faced by the child; Refugee Law (RL) provides backup protection to refugees around the world; civilians in armed conflict are also granted protection by International Humanitarian Law (IHL). IHL and HRL make no specific mention of IDPs whatsoever. And RL applies only to external displacement.
In contrast to conventions dealing other vulnerable groups such as CRC, documents applicable to IDPs either fail to comprehensively address the special needs and distinctive circumstance of IDPs or merely provide soft laws. HRL lumps together IDPs with all other nationals without due consideration for the distinctive circumstances and needs of the former. HRL is too general, applicable to all human beings and fails to specifically address the special protection and assistance needs of IDPs. In the same vein, IHL treats IDPs in the same manner with other civilian in armed conflict without regard to the unique needs of IDPs. Applicable only during armed conflict, the most critical shortcomings of IHL lay on its narrow coverage to IDPs due to CID and inapplicability during peacetime. IHL leaves other types of IDPs such as DID, NDID and MDID out of the protection ambit of IHL. While HRL offers a comprehensive protection but it fails to meet the specific protection needs of IDPs. Conversely, IHL neither covers all types of protection nor does it meet the distinctive needs of IDPs. Guiding Principles on Internal Displacement (GPID), which comprehensively addresses the distinctive needs of all types of IDPs, is, as its very name indicates, a toothless collection of guidelines devoid of claimable rights.
Consequently, IDPs, have been left outside of the radar of international law and unreasonably deprived of international protection, while other groups with similar or lesser degree of vulnerability have been offered a special protection and place in international law. This serious shortcoming in IL relating to the governance of internal displacement and protection of IDPs creates a grave protection gap.
The Originality and Importance of the Kampala Convention
The Kampala Convention is a path-breaking instrument that aspires to fill the protection gap, described above, that exists in international law. It goes a long way in addressing the causes and consequences of internal displacement. In a bare outline form, the achievements of the Kampala Convention include:
It transforms the guiding principles, set under GPID, to treaty provisions with robust claimable rights and corresponding far-reaching duties on large numbers of actors. By so doing, it bridges the gap between the long-standing and urgent need for protection and the critical lacuna that existed in international law. It is the first ever binding instrument governing all phases of internal displacement that comprehensively protects IDPs by granting wide-ranging claimable rights and imposing all-inclusive obligations on an extensive list of national, regional and international state and non-state actors.
The Kampala Convention adopts a carefully negotiated definition that avoids the dangers of too liberal and too narrow definition of IDPs. By so doing, it enhances comprehensiveness of its coverage of all types of IDPs without sacrificing clarity in conceptualization and efficacy in application. The concept of IDPs has been less clear than refugee, not only because of its multiple causes and complex nature but also due to its lack of commonly shared agreement or developed state practice, or legally binding meaning of IDPs. The Refugee Regime was able to construct a clear definition of the refugee through legal imposition. In similar a manner, the Kampala Convention, for the first time, imposes a legally binding definition of IDPs.
The Kampala Convention comprehensively addresses all types, causes and consequences of internal displacement. It is the first binding instrument which adequately governs the CID, DID, MDID, and NDID in non-discriminatory manner. It spells out the obligations of SPs and companies in relation to DID. The Kampala Convention extensively covers all phases of displacement including prevention of internal displacement, protection of, and assistance to IDPs, as well as durable solution to internal displacement. It covers prevention in more comprehensive and unique manner than any other legal document.
A more far-reaching contribution of the Kampala Convention, thus, comes from its effective application of recently emerging norms and new concepts through skillful reformulation of these norms and concepts to adapt to internal displacement. As noted by the President of the International Committee of the Red Cross (ICRC), the Kampala Convention, beyond filling the protection gap, has improved IL in many ways and areas.
By employing a human-rights approach, the Kampala Convention confers legal standing on IDPs to demand these obligations to be fulfilled by all actors that come into contact with them. It introduces new rights that are claimable catering for the specific needs of IDPs for protection and assistance. To mention a few of these newly introduced rights of IDPs: the rights of IDPs to return to their areas of origin; to claim compensation; to request assistance through peacefully demonstration etc.
The Kampala Convention exceptionally focuses on duties of the SPs to prevent internal displacement. A significant improvement on the GPID, early warning, preparedness and response mechanisms to internal displacement crisis marks a key departure of the Kampala Convention from reactive measures stipulated by many international treaties.
While concentrating on the duties of the SPs, the Kampala Convention lists specific roles and imposes wide-ranging duties on all international and regional, state and non-state actors who come into contact with IDPs. The legal duties imposed by the Kampala Convention are not limited to SPs but they extend to the AU and the international community at large. It thoroughly formulates and specifies the role and responsibilities of institutions of global and regional governance such as the United Nations (UN), Regional Economic Communities (RECs), and international organizations and aid agencies. With regard to violations of human rights by companies, international law governs the actions of businesses indirectly through SPs. In contrast; the Kampala Convention directly stipulates the obligations of companies in relation to their business and their impact on local populations. Unusual in international law, the Kampala Convention strictly and comprehensively regulates the conduct of non-state actors particularly that of armed groups and business companies in relation to internal displacement. In a cleaver manner, it detailed the responsibilities of armed groups and their members.
In addition, to address the institutional gaps in the protection of IDPs, the Kampala Convention stipulates for an existing or newly established national body to be designated as a focal agency for internal displacement and IDPs issues.
Another historical contribution of the Kampala Convention lays on its success to combine of the principles of state sovereignty as a responsibility to protect nationals, and international solidarity to assist states with internal displacement crisis. These duties stipulated under the Kampala Convention entail some forms of responsibilities of intervention by the international community. This is particularly correct with regard to the mandate of the AU to intervene in a MS when internal displacement crisis constitutes grave circumstances namely, war crimes, genocide and crimes against humanity. By and large, protracted displacements, particularly CID, indicate the failure of the state in fulfilling its responsibility to protect its citizens from harm to life, livelihood and safety. Hence, the need for a comprehensive but separate legal instrument dealing with IDPs follows the same logic that when a state fails to discharge its responsibilities, the international community, and in this case mainly the AU, has the duty to provide a back-up protection to the citizens of that state. Consequently, under the Kampala Convention, the responsibility of addressing the plight of IDPs is placed on all states. In line with the principle of the responsibility to protect, the intervention role of international and regional mechanisms such as AU is clearly stipulated. In accordance with the principle of subsidiarity, the Kampala Convention empowers the AU to intervene for protection purpose, and in a compatible manner with the AU Constitutive Act and international law.
Moreover, the Kampala Convention sets the considerations under which the right of AU to intervene in MS could be utilized for the protection of IDPs. By imposing the primary responsibility on SPs and reasserting the subsidiary role of the international community, the responsibility to protect rejects license to interfere in a state on the pretext of protecting nationals. Intervention differs from interference. Intervention can be sanctioned only substantive and procedural requirements are fulfilled and a proper authorization. The AU Constitutive Act bestowed the AU with robust substantive mandates such as the right of intervention in Member State (MSs) of the AU, and an institutional makeup such as the Peace and Security Council of the AU. New mandates and institutions marked a serious departure of the AU from the OAU. Subsequently, the AU officially approved the principle of the responsibility to protect.
Another landmark contribution of the Kampala Convention is its compliance monitoring and follow-up mechanisms. Employing new institutional setups such as the Conference of SPs (CSPs), the Kampala Convention seeks to offer a peer review mode of monitoring compliance. It empowers the African Court of Justice and Human Rights (ACJHR) and the African Commission on Human and Peoples Rights (ACHPR) to promote compliance of the SPs and other responsible actors and adjudicate cases related to the Kampala Convention.
Finally, the Kampala Convention is ultimately expected to contribute to the overall global and African efforts to ensure that migration remains only voluntary and legal act of a person. Voluntary; in order to, ensure that persons are not forced to flee due to push factors. States, accordingly, have the duty to ensure that people are not compelled to migrate by eliminating when possible and preventing when necessary all push factors. And legal; because migrants have to respect the laws of the country to which they migrate.
Conclusion
In addition to its substantial contribution to international law, the Kampala Convention could be considered as one of the most significant achievements in its norm-setting function for Africa and the world at large. The Kampala Convention sets African norms for the governance of internal displacement and protection of IDPs. These norms set by the Kampala Convention are manifestation of the shared values of the AU that needs to be effectively implemented. If sincerely implemented, the Kampala Convention could serve as a tool to effectively alleviate the plight of tens of millions of IDPs in Africa. It provides normative and institutional framework for the governance of internal governance and protection of IDPs. Prevention of internal displacement, protection and assistance as well as durable solutions to IDPs becomes more effective if anchored within the human rights system. The Kampala Convention has done this effectively.
An inquiry commission overwhelmed by the plight of IDPs in Kenya once pointed out that the sincerity, seriousness and commitment of the government of Kenya with regard to healing trauma of post-election violence could only be proven by how far it addresses the severe circumstances of IDPs live in. Implementation is most often local. Now, Member States of the AU could show their determination to end the problem of protracted internal displacement and the suffering of IDPs through speedy ratification and implementation of the Kampala Convention. As the President of Uganda has said, Africans will judge their governments not only by the norms they set but also by how fast they implement them. The responsibility to protect entails the responsibility to implement the Kampala Convention and all other relevant human rights treats.
If sincerely implemented, the Kampala Convention could serve as a tool to effectively alleviate the plight of tens of millions of IDPs in Africa. It provides normative and institutional framework for the governance of internal governance and protection of IDPs. Prevention of internal displacement, protection and assistance as well as durable solutions to IDPs becomes more effective if anchored within the human rights system. The Kampala Convention has done this effectively.
An inquiry commission overwhelmed by the plight of IDPs in Kenya once pointed out that the sincerity, seriousness and commitment of the government of Kenya with regard to healing trauma of post-election violence could only be proven by how far it addresses the severe circumstances of IDPs live in. Implementation is most often local. Now, Member States of the AU could show their determination to end the problem of protracted internal displacement and the suffering of IDPs through speedy ratification and implementation of the Kampala Convention. As the President of Uganda has said, Africans will judge their governments not only by the norms they set but also by how fast they implement them. The responsibility to protect entails the responsibility to implement the Kampala Convention and all other relevant human rights treats.