Africa: from voluntary principles to binding standards

With as many IDPs in Africa – 12 million – as in the rest of the world put together, African states have already shown leadership in the area of IDP protection. Signed in 2006, the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons[1] obliges signatory states to adopt and implement the Guiding Principles. The decision by African Union (AU) ministers in 2006 to initiate a process to develop a continent-wide framework on the rights of IDPs raises the prospect of binding standards for Africa as a whole. The Convention for the Prevention of Internal Displacement and the Protection of and Assistance to Internally Displaced Persons in Africa is expected to be approved at a Special Summit of the AU in Uganda in April 2009

The draft Convention is broadly based on the Guiding Principles. IDP advocates welcome it but have a number of reservations.

• The opening clause requiring states to refrain from and prevent discrimination is too narrow, focusing only on “ethnic, racial or religious” factors, rather than mirroring Guiding Principle 4 which outlaws discrimination of any kind.

• The Convention lacks the positive assertion of Guiding Principle 1 that IDPs “shall enjoy …the same rights and freedoms under international and domestic law as do other persons in their country.” At most, it creates a negative obligation on states to “prevent political, social, cultural and economic exclusion and marginalization, likely to cause displacement.”

• Language about “simplified procedures” to restore property to IDPs is vague and may not empower IDP women to recover property in cases where they lack the right to inherit what is considered solely their husband’s property.

• The Convention itemises rules of behaviour for non-state armed actors but, by definition, such non-state actors cannot be party to the Convention.

• The Convention, unlike the Principles, directly addresses the issue of development-induced displacement. However, the vagueness of a caveat saying that this applies only to “large-scale” development could allow states to avoid responsibilities. The Convention says nothing about public and parliamentary scrutiny of projects likely to cause displacement.

• Various articles dealing with states’ responsibilities to provide protection and humanitarian assistance – or to enable others to provide it – create unease: for each clause strongly laying out standards, another clause potentially undermines the point being made. For example: the Convention requires states to acknowledge the neutrality, impartiality and independence of humanitarian actors but, worryingly, gives states “the right to prescribe the technical arrangements” concerning humanitarian access; a clause gives international agencies only a limited role in assessment of needs and vulnerabilities, meaning that a state could choose to decide that IDPs’ needs are being met, whatever the actual situation they face; 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”; and the inclusion of 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.

• Language about monitoring compliance is vague. The draft envisages the establishment of a Conference of States Parties for the purposes of monitoring and reviewing implementation but does not specify its functions or clarify reporting mechanisms.

A potential means of ensuring compliance is the African Court of Justice and Human Rights – an institution intended to be the “principal judicial organ of the [African] Union” but which is not yet functional. According to the protocol establishing it, the Court has jurisdiction over not only provisions of the African Charter on Human and Peoples’ Rights[2] 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.

Should these reservations be addressed, the Guiding Principles could be on the cusp of forming the core of the world’s first international legal instrument for the protection of IDPs.

Brigitta Jaksa (brigi@idpaction.org) is Legal Advisor and Jeremy Smith (jeremy@idpaction.org) is Director of Organisational Strategy at IDP Action (www.idpaction.org), a UK-based agency campaigning for the rights of African IDPs. The full version of this article is available at the organisation's website.