From Voluntary Principles to Binding Standards

The African Union Convention for the Prevention of Internal Displacement and the Protection of and Assistance to Internally Displaced Persons in Africa

IDP Action has published a detailed analysis of the draft African Union IDPs Convention. The IDP Action paper weighs the strengths and weaknesses of the draft Convention, with particular attention to the articles relating to non-discrimination, the obligations of armed groups and monitoring and compliance. A summary of IDP Action's analysis has also been published in a special issue of the journal, Forced Migration Review.

Introduction

The Guiding Principles on Internal Displacement [hereafter the Guiding Principles] have become one of the most significant references in dealing with internal displacement. Although their contents are derived mainly from existing international legal rules and standards, the Guiding Principles are a non-binding, soft law instrument. While the same human rights obligations apply in the case of internally displaced persons as for those who remain in their habitual residence, the need for a legally-binding framework specifically addressing internal displacement has gradually gained recognition due to the devastating reality faced by millions of IDPs and states’ incapacity or unwillingness to ensure even the same level of human rights protection as the rest of the population.

In this context, the decision of the African Union (AU) at a Ministerial Conference in 2006 to initiate a process to develop and adopt a legally-binding framework on the rights of IDPs was one which has been welcomed by many international non-governmental organizations (NGOs). A Convention for the Prevention of Internal Displacement and the Protection of and Assistance to Internally Displaced Persons in Africa [hereafter 'the Convention'] has been drafted and is scheduled to be adopted at a Special Summit of the AU in Uganda in March 2009. The Convention would be the first international instrument of its kind and would send an important signal to the rest of the world about the seriousness with which Africa, home to around half of the global total of IDPs, considers the issue. The Convention is broadly based on the Guiding Principles, but nonetheless contains a number of interesting features, as well as what would be considered weaknesses by those keen to see it become as effective an instrument as possible for protecting the rights of African IDPs.

This article outlines the key elements of the current draft and considers some of the implications of the policy framework for IDPs in Africa shifting from voluntary principles to binding standards.

Non-discrimination

The current draft Convention deals with discrimination in a number of articles, but would benefit from a closer correlation with the Guiding Principles. The opening clause requiring states to refrain from and prevent discrimination against IDPs is too narrow – it focuses on "racial discrimination or other practices aimed at / resulting in altering the ethnic, racial or religious composition of the population" – and ought rather to mirror Guiding Principle 4, which states that IDPs should not be subject to "discrimination of any kind, such as race, colour, sex, language, religion or belief, political or other opinion, national, ethnic or social origin, legal or social status, age, disability, property, birth, or on any other similar criteria". The importance of an explicit, but not closed, listing of prohibited grounds is that it provides for a clearer application of the rule not only in relation to the overall population, but also within the displaced population when protection and assistance is provided. In other words, individual IDPs or internally displaced groups should not be discriminated against for reasons based on their particular status as displaced persons, nor on any other grounds when compared to the general population or other IDPs. Furthermore, as Guiding Principle 3.2 states, IDPs should not be persecuted for requesting protection and humanitarian assistance, especially when to do so involves exercising other rights, such as the freedom of association. Here, the draft Convention does explicitly prohibit such forms of persecution and serves to strengthen the exercise of liberty rights in cases when emergencies might subject them to unjustified restrictions. However, this clause is only as strong as the opening non-discrimination clause itself – IDPs persecuted on grounds not specified in that clause could be denied this protection.

The Convention lacks the positive assertion of Guiding Principle 1 that IDPs "shall enjoy, in full equality, the same rights and freedoms under international and domestic law as do other persons in their country". Instead, the Convention creates another negative obligation on states to "prevent political, social, cultural and economic exclusion and marginalization, likely to cause displacement of populations or persons by virtue of their identity, religion or political opinion". The obligation to "prevent exclusion and marginalization" is an interesting development which chimes with the growing recognition in refugee law that violations of economic, social and cultural rights, including violations which stem from discriminatory policies, can constitute serious harm and be the basis of a valid refugee claim. The obligation to prevent should be interpreted to include the obligation to prevent further exclusion and marginalization even if the state had failed to prevent the initial displacement. The flaw with this clause again, however, is the relative narrowness of those to be protected from exclusion and marginalization, defined by identity, religion or political opinion rather than the terminology used in the Guiding Principles of 'all IDPs' and 'full equality'.

A potential blind-spot in relation to non-discrimination concerns IDPs' property rights. An obligation is included to "establish appropriate mechanisms providing for simplified procedures where necessary for resolving disputes relating to the property of internally displaced persons". This obligation should be understood against the paramount importance of non-discrimination on the grounds of being internally displaced – the only purpose of a 'simplified' procedure should be that property disputes are dealt with in an efficient and timely manner, but without compromising legal guarantees protecting the right to property, as well as the right to proper indemnification for expropriation. Particular importance should be accorded to issues of gender-based discrimination in relation to property rights. IDP women should be assisted with regaining family property, as it is often the case that they return as heads of household, but lack the right to inherit what is considered solely their husbands' property.

Armed groups

Internal displacement is frequently caused by the activities of armed groups, endangering or violating people’s lives, physical integrity, safety and livelihoods. When armed groups take control over a certain part of a state’s territory to which the state is in consequence unable to gain access, the state’s responsibility to protect and provide for the proportion of the population temporarily outside its jurisdiction radically decreases or disappears. The draft Convention seeks to fill this legal gap by transferring basic obligations to refrain from violation of human rights and to adhere to humanitarian law to armed groups. This proposal is controversial, since armed groups have a very limited recognition as actors in the international legal terrain and certainly do not have the legal capacity to sign human rights Conventions. Furthermore, the draft text itself declares that "nothing in the present Convention shall be construed as affording legal status or legitimizing or recognizing armed groups". This declaration accords with the core interest of states not to put their armed opponents on close to an equal footing. So for the Convention, the result is a contradiction in terms: obligations are transferred to armed groups from which neither compliance nor enforcement can reasonably be expected, since such groups have no legal standing.

Where the Convention, by definition centred on the responsibilities of states, could address the consequences of armed groups' actions is in cases, common in Africa, where an outside government exercises overall or some degree of control over the groups in question. Such support or control may include the financing, organizing, training, supplying and equipping individuals or groups, or having overall or some degree of command over the operations of the group. Since the Convention itself is concerned with responsibility for internal displacement and other international legal instruments deal with states' responsibility for the human rights of the displaced in more depth, the threshold for the level of control of armed groups could be taken as lower than in cases where attempts have been made to attribute legal responsibility for abuses committed by armed groups to an outside government. It could be that some degree of support, financing, supplying and organizing the activities of armed groups would be enough to establish the responsibility of one state for the internal displacement of people in another.

Displacement caused by development projects

The inclusion in the draft Convention of a specific article on displacement caused by development projects is a welcome addition and one which confronts directly what the Guiding Principles had only skirted around. However, the article is undermined by being restricted, like Guiding Principle 6 before it, to cases of 'large-scale' development projects. This caveat is neither defined nor consistently used. It creates the possibility that those forced to flee because of development projects not considered to be sufficiently 'large-scale' do not benefit from the protections which the article details, regardless of the material effects on the welfare and security of those so displaced.

The Convention follows Guiding Principle 6 in justifying displacement as a result of development projects only on grounds of a "compelling and overriding public interest". Again following the Guiding Principles, the Convention includes a number of safeguards relating to the exploration of "all feasible alternatives" before a development project is approved and the provision of "full information, consultation and cooperation" to those to be displaced in the process of managing their relocation. The concern remains that the definition of a "compelling and overriding public interest" is open to interpretation and also that elements of the article remain inconsistent with existing international law and standards on forced evictions. The Convention lacks reference to the need for development projects which could result in displacement to be subject to public and parliamentary scrutiny (as per Guiding Principle 7.3.a) and transparent processes to demonstrate their value, as well as alternatives to displacement being properly explored.

Protection and Humanitarian Assistance

The various articles dealing with states' responsibilities to provide protection and humanitarian assistance – or to enable others to provide such protection and assistance – create a certain sense of unease: for each clause laying out in strong terms the standards to be met, another clause at least potentially undermines the point being made. References to situations when states are unable to protect and assist IDPs sometimes indicate that states "shall" seek international assistance and sometimes merely that they "may". Including a condition that outside assistance would be sought when "maximum available [state] resources are inadequate" is unhelpful, since it creates a mechanism by which a state can prevent such assistance, even in cases where it has no intention of providing it itself. This is an impression reinforced by a clause which limits the assessment of the needs and vulnerabilities of IDPs to states, with only a limited role for international agencies: a state could choose to decide IDPs' needs are being met, whatever the situation faced by IDPs themselves.

Crucial to an assessment of this part of the Convention is the question of the balance between a clause that asserts that "states parties shall uphold and respect the humanitarian principles of humanity, neutrality, impartiality and independence of humanitarian actors" and another which maintains that "states shall have the right to prescribe the technical arrangements under which such passage is permitted". While technical arrangements in some form are undoubtedly necessary, the risk is that these could prove deleterious to relief or investigative efforts. Taken with the preceding clauses, a final clause stating that "nothing in this article [detailing the obligations of states parties relating to protection and assistance] shall prejudice the principles of sovereignty and territorial integrity of states" raises the concern that the Convention could serve to reinforce rigid state sovereignty rather than empower pan-African IDP protection.

Compliance and enforcement

The Convention will not differ significantly in effect from the Guiding Principles if its compliance and monitoring system is weak. States Parties are obliged to adopt implementing legislation, designate a body responsible for coordinating activities aimed at protecting and assisting IDPs and to provide the necessary resources to deliver such activities. In turn, the current draft envisages the establishment of a Conference of States Parties for the purposes of monitoring and reviewing implementation. However, the draft does not elaborate on the functions and the competencies of this Conference, nor on its exact relation to, or position within, the AU. Some of the language in the article on 'Monitoring Compliance' is loose: there is reference to the Conference of States Parties being "convened periodically" and to States Parties being obliged merely to "indicate" the measures taken to give effect to the Convention in periodic reports to the African Commission on Human and Peoples' Rights (ACHPR). This reporting mechanism does at least avoid the creation of a parallel channel of reporting obligations.

The AU receives significant competencies in the draft Convention, including collaboration with international organizations and humanitarian agencies and sharing information with the ACHPR. The AU’s right to intervene in cases of grave circumstances (war crimes, genocide, crimes against humanity) is reaffirmed, in accordance with the AU's Constitutive Act.

A final potential means of ensuring compliance is the African Court of Justice and Human Rights. According to Article 28 (c) of the Protocol on Statute of the African Court of Justice and Human Rights, the Court has jurisdiction over not only provisions of the African Charter on Human and Peoples' Rights, but also any other relevant human rights instruments ratified by the states concerned. This means that if a state has ratified the Protocol, the Court would in theory be able to consider issues of a state’s compliance with the IDPs Convention.

Conclusion

The desire for a Convention on the issue of internal displacement in Africa was a key demand of African and international NGOs meeting at a Forum prior to the 42nd Ordinary Session of the ACHPR in Brazzaville in November 2007. In a Resolution on Migration and Human Rights – later endorsed by the ACHPR itself – NGOs recommended to the AU that it "adopt legally binding instruments for the protection of the rights of migrants, notably a Convention for the Prevention of Internal Displacement and the Protection of and Assistance to Internally Displaced Persons in Africa, based on the Guiding Principles on Internal Displacement". If in large part carried through into a binding AU Convention, the Guiding Principles would become a more powerful instrument. It is fitting that, in the tenth year since their first development, the Guiding Principles are on the cusp of forming the core of the world's first international legal instrument for the protection of IDPs.