The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, known as the Kampala Convention, entered into force on December 6, 2012.
The Kampala Convention is the first binding international convention containing State obligations and rights of internally displaced persons (IDPs). This represents an express recognition by the African Union (AU) of the inadequate protections for IDPs in Africa, which accounts for forty percent of the world’s IDPs, and it is the result of a process dating back to 2004 when the AU Executive Council announced its intention to draft a treaty addressing IDPs.
IDPs are persons who, without crossing internationally recognized borders, have been forced to flee their homes or places of habitual residence as a result of armed conflict, violence, human rights violations, or natural or man-made natural disasters. IDPs make up a far larger population than cross-border refugees, and one-third of the world’s IDP populations—approximately 10 million persons—are found in twenty-one countries in Sub-Saharan Africa.
While states have increasingly recognized IDPs over the last two decades, the only previous international mechanism was the Guiding Principles on Internal Displacement, soft law issued by the UN Office of Coordination of Humanitarian Affairs in 1998. Although non-binding, the Guiding Principles have served as the basis for subsequent binding mechanisms. The first incorporation of the Guiding Principles also occurred in Africa, at the sub-regional level, with the Great Lakes Pact. While the scope of the pact was much larger, Article 12 obligates its eleven member states of the International Conference on the Great Lakes Region to adopt and implement the Guiding Principles.
Unlike the Guiding Principles and the Great Lakes Pact, the Kampala Convention is the first time states have enacted a treaty-based legal framework specifically for IDPs. The Kampala Convention has three overarching goals: (1) preventing or mitigating internal displacement; (2) protecting and assisting IDPs; and (3) promoting solutions and support among member states. Although the Kampala Convention does not grant IDPs special legal status, similar to the situation for refugees, it does outline IDPs’ rights and circumstances where States must provide assistance to IDPs.
The Kampala Convention provides for important protections of IDPs’ rights. States must protect IDPs from human rights abuses including discrimination, genocide, crimes against humanity, arbitrary killing, detention, torture, and sexual or gender-based violence. In addressing emerging trends of development-induced IDPs, States have the duty to prevent development-based displacement by exploring alternatives and carrying out impact assessments. Unlike the Guiding Principles, which consider only large-scale development projects, the Kampala Convention applies to development projects of any size.
As with most international conventions, States must meet these obligations without discrimination on any grounds. The Kampala Convention obligates States to protect individuals from arbitrary displacement and to promote IDP’s’ human rights. It also requires that States ensure criminal prosecution of individuals responsible for causing displacement and violations of IDP’s rights and that the States provide for “satisfactory conditions for voluntary return, local integration or relocation on a sustainable basis and in circumstances of safety and dignity.”
Article 5 of the Kampala Convention creates a positive duty for States to accept external humanitarian assistance. This requirement is the first of its kind in a human rights treaty and it is an extension of State obligations under international humanitarian law, which provides obligations of humane treatment and protection of civilian populations in times of armed conflict. Previously, only soft law provisions under international disaster response law have addressed state obligations to accept external assistance. As with the earlier soft law documents, the Kampala Convention’s obligation of third-party assistance only requires States to accept assistance when they lack adequate resources on their own. In these situations, the AU will act in a coordination capacity to target strengthening responses and resource mobilization. Furthermore, if a state’s unwillingness to accept assistance results in human rights violations in order to comply, the AU may intervene and assume the obligations under the convention.
Although the Kampala Convention represents an important step forward in protecting IDPs, a few provisions may detract from its efficacy. Unlike the Great Lakes Pact, which grants jurisdiction over disputes on interpretation and implementation to the African Court of Justice and Human Rights (ACJHR), under the Kampala Convention States may refer disputes to the ACJHR only after negotiations between States have broken down. Furthermore, the duty to accept external aid has a limiting clause stating, “Nothing in this Article shall prejudice the principles of sovereignty and territorial integrity of states.” This possible weakness aside, the Kampala Convention is an important step forward in establishing binding protections for IDPs.