1

Ghetnet Metiku, Reflections on the AU Convention for the Protection and Assistance of Internally

Displaced Persons, Monday, July 21, 2014

1 Introduction and Background

Africa has been plagued by conflict in the decades following the liberation of African countries from

colonialism. The most prevalent form of conflict on the African continent is internal conflict or civil war.

These conflicts have led to major population displacements within countries and across borders. To make

matters worse, parts of the continent have suffered from a series of natural and manmade disasters. The

result is a large number of refugees, returnees and internally displace persons (IDPs) on the continent. In

response, African states have adopted various legal instruments under the auspices of the OAU and AU.

Most notably, the Convention Governing the Specific Aspects of Refugee Problems in Africa adopted in

1969. The AU Convention for the Protection and Assistance of Internally Displaced Persons (Kampala

Convention) marks a major step in extending protections to IDPs who have not been subject to special

protections in legally binding international instruments.

The Convention identifies IDPs authoritatively in line with non-binding international principles that have

been accepted broadly and incorporated in to various national laws. In stating its objectives, the

Convention deals with the prevention of displacement, the protection of displaced persons during

displacement, and the protection of returnees. It then proceeds to identify the general and specific

obligations of states parties to the Convention as well as ‘armed groups, non-state actors and other

relevant actors, including civil society organizations’ in the prevention of displacement and assistance to

IDPs. States parties to the Convention bear the primary responsibility for all aspects of the prevention and

response to displacement including the duty to ensure individual responsibility for arbitrary displacement

and the accountability of non-state actors. States parties also bear the responsibility to take action to

implement the provisions of the Convention through appropriate measures of implementation in the

domestic legal, policy, institutional and programme frameworks.

The remainder of the provisions of the Convention deal with issues of obligations on protection from

internal displacement, assistance during displacement, obligations of international organizations,

protection and assistance during armed conflict, obligations relating to the AU, displacement caused by

development projects, the resolution of displacement, remedies for those affected by displacement,

documentation for IDPs, and monitoring implementation of the Convention.

2

2 Points of Reflection

2.1 Basis in the Pre-Existing Human Rights Framework

The Kampala Convention is the first international/regional human rights treaty for the protection of IDPs.

However, one can find basis for the Convention in the provisions of general human rights instruments that

relate directly to the provisions of the convention on the prevention of displacement and protection of

IDPs. In relation to the first, protection from arbitrary displacement, exclusion and marginalization are

traceable to the provisions of the UDHR, ICCPR and ICESCR. The African Charter on Human and

Peoples’ Rights also contains comparable provisions. This is even more so for the Convention’s

provisions referring to humane treatment, nondiscrimination, equality and equal protection of law for

IDPs. The IDP convention also draws upon humanitarian law, international standards for the protection of

refugees and Africa’s experience in adopting the Convention Governing the Specific Aspects of Refugee

Problems in Africa dealing with the protection of persons forced to leave their countries. The Kampala

Convention most directly drew upon the 1998 Guiding Principles on Internal Displacement adopted in

various forums at the international level, incorporated into domestic laws in various countries and the

practices of international organizations working on displacement. However, one can but accept that the

core rationale for the Convention is the situation of IDPs in the African continent.

2.2 Definition of IDPs

The Kampala Convention defines IDPs as persons forced or obliged to flee their homes, mainly due to

conflict, human rights violations or disasters, but have not crossed international borders. This definition

draws upon the definition stated in the 1998 Guiding Principles on Internal Displacement. In doing so, the

Convention addressed the doctrinal dilemma vis-à-vis the principle of sovereignty that has long haunted

attempts to provide for a clear legal status to IDPs. This makes it a pioneering human rights instrument

for the protection of IDPs in regional and international human rights systems.

2.3 Objectives

The objectives of the Kampala Convention go beyond the protection of the rights of IDPs and encompass

prevention, protection and re-integration. In effect, the scope of the Convention covers vulnerable

populations who have not yet been displaced, displaced persons and returnees. Each of these categories of

persons are provided a regime of protection through the explicitly stated obligations of States Parties and

non-state actors in the provisions of the Convention. The implications of these objectives are multifarious.

Just to mention one critical issue one should note that the causes for the displacement of IDPs are

3

generally the same as those of refugees crossing borders. Thus, the prevention of displacement amounts in

effect to preventing the displacement of communities vulnerable to becoming IDPs and refugees.

2.4 Scope of Responsibilities

The Kampala Convention identifies the stat as the primary duty bearer for the implementation of its

provisions. States Parties to the Convention are obliged to take measures to prevent arbitrary

displacement and to protect and assist displaced persons. In addition, States Parties are required to ensure

that non-state actors abide by the provisions of the Convention and principles of international human

rights and humanitarian law referred to therein. However, the Kampala Convention also provides in some

detail for the obligation of non-state actors. More specifically, the Convention refers to the obligations of

international organizations and humanitarian agencies and members of armed groups. While these issues

have been generally addressed in the context of humanitarian law, a clear statement on the obligations of

NSAs is a rare occurrence in international and regional human rights instruments. Thus, this is one

additional unique feature of the Kampala Convention.

2.5 Obligations relating to the African Union

One of the distinguishing features of the Constitutive Act of the AU is its approach to intervention. The

principle articulated under article 4/h of the Constitutive Act mandates the AU to intervene in a Member

State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes,

genocide and crimes against humanity. This principle, as well as the right of a Member State to request

intervention, has been re-stated in the Kampala Convention. The Convention also provides in detail for

the role of the AU in supporting Member States in preventing and responding to internal displacement.

2.6 Implementation Framework

The implementation of the Kampala Convention is to take place through measures of implementation

undertaken by States Parties in the form of recognition of the binding nature of the Convention, enacting

appropriate legislation, designating an institution with the necessary mandates, taking policy and

programme measures, and resource allocation. In addition, the Convention provides for a monitoring

framework in the form of a Conference of States Parties, reporting under the ACHPR and the African

Peer-Review Mechanism. Thus, rather than creating a completely new monitoring framework, the

Kampala Convention has capitalized upon existing regional monitoring systems to ensure

implementation.