Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

• DOI: https://doi.org/10.47348/AYIH/2020/a4
• Author: Fomekong, S.T.
• Published date: 20 September 2021
• Date: 20 September 2021
• Citation: (2020) African Yearbook on International Humanitarian Law 78
• Pages: 78-120

78

Reections on humanitarian law

dimensions of the African Union

Convention for the protection and

assistance of internally displaced

persons in Africa

Steve Tiwa Fomekong*

Abstract

While signi cant attention has thus far been paid to t he African Union

Convention for the Protection and Assi stance of Internally Displaced

Persons in Afr ica (Kampala Convention), the rules of human itarian

law that it sets out have not yet been the subject of a spec ic in-depth

analysis. Thi s contribution aims to ll thi s gap in the literature. It

specically examines the humanitarian law rules contained in the

Kampala Convention to determ ine their meaning and scope, as wel l as

their contribution to strengthening international humanitarian law (IHL).

It begins by analysing the articulation of these regional humanitarian

rules with the u niversal rules of IHL t hat preceded them to determine

whether there is any divergence b etween them. Next, the paper atte mpts

to determine the extent to which t he humanitaria n law provisions of the

Kampala Convention enr ich the legal protections prov ided by IHL for the

improvement of the plight of internally di splaced persons from armed

conict. Final ly, with an approach centred around making s uggestions

for law reform, the paper demonstrates why and how these r ules should

inspire the fut ure development of conventional and customary norm s

that would assist with the cha llenges of conict-induced displacement.

Keywor ds: Kampala Convention, humanitarian law r ules, international

humanitarian law, protection, assistance

* Steve Tiwa Fomekong is a postdoctoral r esearch fellow at the Centre d’études

et de recherches de l’Univer sité de Montréal in Canada. He holds a PhD

in Law from Université Lava l. He has lectured at the Fac ulty of Law of the

same University. He is a member of the res earch team working on a project

entitled: ‘Promotion et re nforcement du droit international huma nitaire:

Une contribution canadienne’. Email address: steevemartial@yahoo.fr / steve-

martial.tiwa-fomekong.1@ulaval.ca.

https://doi.org/10.47348/AYIH/2020/a4

(2020) African Yearbook on International Humanitarian Law 78

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 79

https://doi.org/10.47348/AYIH/2020/a4

1 INTRODUCTION

The forced displacement of people within internationally recognised

State borders is one of the most acute humanitarian issues of our ti me.

It is estimated that over 50.8 million people were displaced worldwide

in 2020, many of them as a result of armed conicts.1 However, this

phenomenon is not new. Besides, international awareness of the scale

of internal displacement, as well as the need to improve the plight

of the people affected by it,2 has always been a source of concern.3

Reections on the development of an international normative

framework for the protection of internally displaced persons (IDPs)

date back to the early 1990s and led to the adoption of the Guiding

Principles on Internal Displacement (Guiding Pr inciples) in 1998.4 This

main universal reference text for addressing internal displacement is,

however, non-binding in nature. Moreover, the Guiding Principles are

considered insufcient, not only because of their non-binding nature,

but also because they do not ‘provide solutions and accountability for

IDPs’ challenges’.5

The failure of the universal legal regime to provide specic and

adequate legal protection to the growing number of IDPs motivated the

African regional organisation to adopt the African Union Convention

1 Internal Displacement Monitori ng Center ‘Global Report on Internal

Displacement’ (April 2020) 2, 3, 11, available at

displacement.org /sites/default/files/publication s/documents/2020 -IDMC-

GRID.pdf > (accessed on 21 August 20 21).

2 The expression ‘internal ly displaced persons’ refers to ‘p ersons or groups of

persons who have been forced or obl iged to ee or to leave their homes or

places of habitual residence, i n particular as a r esult of or in order to avoid

the effects of a rmed conict, situations of gene ralized violence, violations of

human rights or natu ral or human-made disaste rs, and who have not crossed

an international ly recognized State border’. See Af rican Union Afric an Union

Convention for the Prot ection and Assistance of Inter nally Displaced Persons in Africa

(adopted on 23 October 20 09) art 1(k) available at

les/treaties/36846 -treaty-kampala _convention.pdf> (accessed on 31 July

2021) (Kampala Convention); Mike Asplet a nd Megan Bradley ‘Introductor y

Note to the Africa n Union Convention for the Protection and Assi stance of

Internally Displac ed Persons in Afric a (Kampala Convention)’ (2013) 52:1

International Legal Mate rials 397 at 400.

3 Marguerite Contat Hickel ‘P rotection of Internally Displaced Pers ons Affected

by Armed Con ict: Concept and Challenges’ (20 01) 83:843 International Review

of the Red Cross 699 –711.

4 United Nations ‘Guiding Princ iples on Internal Displac ement’ (E/CN.4/1998/53/

Add.2), available at /CN.4/1998/53/Add.2> (accessed on

31 July 2021) (Guiding Principles).

5 Adama Dieng ‘Protect ing Internally Displaced Pe rsons: The Value of the

Kampala Convention as a Reg ional Example’ (2017) 99:904 Internat ional Review

of the Red Cross 263 at 271.

© Juta and Company (Pty) Ltd

80 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

for the Protection and Assistance of Internally Displaced Persons in

Africa (Kampala Convention) in 2009.6 Chaloka Beyani, one of the

main actors involved in the drafting of the Kampala Convention, has

accurately and t horoughly described the rationale for this normative

step as follows:

[F]ar more important than t he issue of the numbers and location

of internally displace d persons are such factors as the shee r gravity

of their situation, their pre carious existence and v ulnerability, and

the dimensions of human r ights and humanitarian law re quired

to provide for their physical and materia l protection, including

humanitaria n assistance. These factors cal l for the formulation of

a comprehensive legal framework designed to co dify the standard s

of protection, provide for the means and i nstitutions of protection

and assistance, and to ser ve as a legal basis for coordinating var ious

regional and internationa l actors and agencies involved in providing

protection and assistance to i nternally displaced p ersons in Africa.7

Indeed, the stated objective of the Kampala Convention is to ‘promote

and strengthen regional and national measures to prevent or mitigate,

prohibit and eliminate root causes of internal displacement as well

as provide for durable solutions’.8 It provides an unprecedented

legal framework to address the structural factors that cause internal

displacement in Africa, and to empower African actors concerned

with internal displacement.9 In addition to the novelty of its binding

nature, this legal instr ument is unique in its comprehensiveness.

Drawing on international refugee law, international human rights

law and international humanitarian law (IHL), it sets out provisions

to protect the rights of IDPs during all phases of displacement. It also

governs all types of internal displacement, including, without being

limited to, internal displacement resulting from armed conict and

other situations of generalised violence, disaster-induced displacement,

and development-induced displacement.10 Among these categories of

internal displacement, displacement due to armed conict is the most

frequent form of displacement, particularly in Africa. In fact, of the

6 See Kampala Convention pream ble para 14. For details on the ‘travaux

préparatoires’ of thi s Convention, see JO Moses Okello ‘In Lieu of a “Travaux

Preparatoires”: A Commentar y on the Kampala Convention for IDPs’ (2019)

31:2/3 International Journal of Refugee Law 349– 378.

7 Chaloka Beyani ‘Recent De velopments: The Elaboration of a Legal Framework

for the Protection of Inter nally Displaced Persons in A frica’ (2006) 50:2 Jour nal

of African Law 187 at 189.

8 See Kampala Convention ar t 2(a).

9 See also Alexand ra Bilak « L’Afrique face à ses déplacés internes » (2016) 1

Politique ét rangère 39.

10 See Kampala Conve ntion art 1(k) and (l).

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 81

https://doi.org/10.47348/AYIH/2020/a4

50.8 million IDPs worldwide, over 45.7 million were displaced within

the context of armed conict,11 with the African continent alone

accounting for more than a third of these people.12 Working from

this premise, armed conict-induced displacements are a category of

displacement which ought to warrant considerable attention due to its

high prevalence. From a humanitaria n law perspective, it is worthwhile

examining the existing normative framework aimed at addressing the

rights and needs of those who have been displaced by armed conict.

This contribution focuses on conict-induced displacement and,

more specically, on the rules of the Kampala Convention that are

specically designed to prevent such type of displacement or to protect

those affected by it. These ru les are referred to as ‘humanitarian law

rules’ insofar as, like the u niversal rules of IHL,13 they apply specically

to situations of armed conicts14 and aim to resolve the humanitarian

11 IDMC op cit note 1 at 11.

12 Ibid at 11–26.

13 International huma nitarian law (IHL) is a set of r ules which seek, for

humanitaria n reasons, to limit the effe cts of armed conict . IHL protects

persons who are not or are no longer pa rticipating in the host ilities and

restricts t he means and methods of warfa re. See ICRC ‘What is Internationa l

Humanitaria n Law?’ (2004) available at /en/doc/assets/

les/other/what_is_ ihl.pdf> (accessed on 21 August 2 021). It is widely

accepted that the main i nstruments that form t he basis of this body of law

include the Geneva Convention for t he Amelioration of the Condition of the

Wounded and Sick in Armed Forc es in the Field, 12 August 1949, 75 UNTS 31

(entry into force: 21 October 1950) (First G eneva Convention); the Geneva

Convention for the Amelioration of t he Condition of the Wounded, Sick and

Shipwrecked Membe rs of Armed Forces at Sea, 12 August 1949, 75 UNTS 85

(entry into force: 21 October 1950) (Second Geneva C onvention); the Geneva

Convention relative to the Treatment of Pr isoners of War, 12 August 1949, 75

UNTS 135 (entry i nto force: 21 October 1950) (Third Geneva Convent ion);

Geneva Convention relative to t he Treatment of Civilian Persons in T ime of

War, 12 August 1949, 75 UNTS 287 (entry into force: 21 October 1950) (Fourt h

Geneva Convention); Protocol Additional I to t he Geneva Conventions of 12

August 1949, and Relating to the Protect ion of Victims of International Ar med

Conicts, 8 June 1977, 1125 UNTS 3 (entry into force: 7 De cember 1978)

(Additional Protocol I) a nd the Protocol Additional to the Geneva Convent ions

of 12 August 1949, and relating to the Protect ion of Victims of Internationa l

Armed Con icts, 8 June 1977, 1125 UNTS 609, RT Can 1991 No 2 (entry i nto

force: 7 December 1978) (Additional Protocol I I).

14 Under IHL, ther e are two categories of armed con ict: international ar med

conicts (I ACs) and non-international armed con icts (NIACs). IACs are

conicts bet ween States. These types of a rmed conicts are covere d by the four

Geneva Conventions and Addit ional Protocol I. NIACs are con icts between

a State and one or more non-state armed g roups (NSAGs) or between NSAGs.

They are covered by Com mon Article 3 to the four Geneva C onventions and

Additional Protocol II. For de tails on the qualic ation of armed conicts

under IHL, see Sylv ain Vité ‘Typology of Armed Con icts in International

© Juta and Company (Pty) Ltd

82 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

problems arising from such situations. The ar ticle examines these

specic rules to determine their meaning, their scope, and the extent

to which they contribute to the strengthening of the legal protections

provided by IHL for the improvement of the situation of those who

have been displaced as a result of armed conict.

Owing to its innovative character and its capacity to curb one of

the most worrying humanitarian issues of our times, the Kampala

Convention has been and continues to be the subject of numerous

analyses. Although there is an e xtensive literature on this major regional

instrument, the humanitarian law provisions set out therein have not

yet been the subject of a specic in- depth analysis.15 This contribution

therefore seeks to ll this gap in the literature. This analysis is even

more necessary, considering the importance of knowing whether fears

linked to the weakening or frag menting of existing un iversal IHL rules

caused by the development of regional humanitarian r ules are real or

not.16 Moreover, this study is part of efforts a imed at disseminating

the rules for the protection of IDPs and hence will make a modest

contribution to improving the lot of these vulnerable people whose

numbers are growing alarmingly and who continue to be victims of

violations of their fundamental rights.17

The analysis is divided into three parts. First, it will look at the

relationship or the articulation between the humanitarian law

Humanitaria n Law: Legal Concepts and Ac tual Situations’ (200 9) 91:873 Int’l

Rev Red Cross 69–94.

15 The few general stud ies that have so far attempted to analys e some of the

humanitaria n law rules of the Kampala C onvention have done so in a

fragmentar y and very summary m anner. They include Stephane Ojeda ‘T he

Kampala Convention on Inter nally Displaced Persons: Some I nternational

Humanitaria n Law Aspects’ (2010) 29:3 Refugee Sur vey Quarterly 58– 66;

Okello op cit note 6; Dieng op cit note 5; Mehari Taddele Mar u ‘The Kampala

Convention and its Contribut ions to International Law’ (2011) 1:1 Journal

of Internal Displacement 91–130; Lauren Grot h ‘Engendering Protec tion: An

Analysis of the 20 09 Kampala Convention and its P rovisions for Internally

Displaced Women’ (2011) 23:2 International Journal of Refugee Law 221–251;

Charissa E Fawole ‘A Critical Ana lysis of the Kampala Convention f rom a

Children’s Rights Per spective’ (2020) Refugee Survey Q uarterly 1–29.

16 See, for example, ICRC Inter national Humanitarian L aw and the Challenges

of Contemporary Arm ed Conicts Report prepare d for 28th International

Conference of the Red Cro ss and Red Crescent, Geneva (2003) 58 –59

(ICRC Inter national Humanitarian Law and the Challenges of Contemporary

Armed Conicts); Nicolas Brass, Ol iver Fox and Stéphane Kolanowski (eds)

Improving Compliance with International Humanitarian Law Proceedings of the

Bruges Colloquium 11–12 September 2 003, no 30, College of Europe/ICRC

(2004) 20 and 88.

17 For details, see for e xample Report of the Secretary- General, Causes of conict and

the promotion of durable peace an d sustainable development in Afr ica UN Doc,

A/74/301– S/2019/645 (2019).

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 83

https://doi.org/10.47348/AYIH/2020/a4

provisions in the Kampala Convention and universal IHL rules to

determine whether there is any divergence between them. Then,

specic new rules of humanitarian law provided for by the Kampala

Convention will be examined to determine concretely to what extent

they enrich or strengt hen the legal protection of IDPs as set forth in IHL

instruments. Emphasis at this level w ill be placed on novel provisions

that have so far not received the attention they deserve, or which have

been overlooked. Finally, following a law reform proposal perspective,

the contribution will attempt to demonstrate why and how these

regional rules should inspire the f uture development of conventional

and customary norms relating to conict-induced displacement.

2 HUMANI TARIAN LAW PROVISIONS OF THE

KAMPALA CONVEN TION AND PRE-EXISTI NG

INTERNATIONAL HUM ANITARIAN LAW: TO WHAT

EXTENT ARE T HEY HARMONISED?

Some commentators have expressed concern that the development

of regional measures in relation to humanitar ian law may lead to an

erosion of IHL, described as a ‘universal law’18 and a ‘universal code’.19

It has notably been argued that the formulation of humanitar ian law

rules in a regional lang uage, to take account of the specicities of the

humanitarian problems of the region concerned, could undermine

the universal dimension and coherence of IHL a nd, consequently,

diminish the legal protection available to victims of armed conict.20

This has led some to posit that ‘[n]othing should be allowed to

endanger the universal acceptance of humanitarian law’.21 It is argued

here that these fears are unfounded w ith regard to the humanitarian

law provisions included in the Kampala Convention.

The humanitarian law rules provided for by the Kampala

Convention are in harmony with the universal rules of IHL and thus

contribute to the preservation of the integrity of this legal corpus. In

18 Luigi Condorel li « Le droit international huma nitaire, ou de l’exploration par

la Cour d’une terra à peu pr ès incognito » in Laurence Boisson de Cha zournes

and Philippe Sand s (eds) International La w, the International Cour t of Justice and

Nuclear Weapons (1999) 229 at 233.

19 See for example ICRC ‘Inter national Humanitari an Law: A Universal Code’

(May 2009) avai lable at

(accessed on 21 August 2021).

20 Paul Tavernier « De 1899 à 1999 : Éclatement ou approfondisseme nt du droit

international huma nitaire? » in Paul Tavernier and Laure nce Burgorgue-Larse n

(eds) Un siècle de droit international humanita ire: centenaire des Conventions de la

Haye, cinquante naire des Conventions de Ge nève (2001) 1 at 3–4.

21 See François Bugn ion « Avant-propos : Discours d’ouverture » in Brass, Fox and

Kolanowski op cit note 16 at 20.

© Juta and Company (Pty) Ltd

84 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

other words, there is no provision in the Kampala Convention that

challenges the coherence of IHL or that contradicts the provisions of th is

body of law. The harmonious articulation of this reg ional Convention

with the universal r ules of IHL can be shown by considering three

main elements.

First, the Kampala Convention recalls t he main foundations of IHL,

which can be interpreted as an indication that the Convention draws

on them. Indeed, in its preamble, the Kampala Convention marks its

full adherence to IHL by recalling the main instr uments of this legal

corpus. Among other legal instruments, it recalls the four Geneva

Conventions of 1949 and their Additional Protocols of 1977,22 wh ich

form the fundamental basis of IHL.23 The preamble to t he Convention

also recognises

the inherent rights of inter nally displaced persons as provided for and

protected in international ... huma nitarian law and as set out in the

1998 United Nations Guiding Pri nciples on Internal Displacement,

which are recogni sed as an important international f ramework for the

protection of internally d isplaced persons.24

In the same vein, the tribute paid to the International Committee of

the Red Cross (ICRC) through the explicit reminder of its mandate

deserves to be noted.25

Further on, notably in Article 7 entitled ‘Protection and Assistance

to Internally Displaced Persons in Situations of Ar med Conict’, the

Convention expressly states that ‘[t]he protection and assistance to

internally displaced persons under this Article shall be governed by

international law and in particular international humanitarian law’.26

This provision also serves as a useful indication that the Kampala

Convention is in line with, and reafr ms, the rules of IHL. Indeed,

although IDPs are particularly vulnerable persons who are exposed

to specic protection problems, they are rst and foremost civilians.27

As such, they benet from all the protections reserved for civilians in

22 Kampala Convention prea mble para 9.

23 Sandrine Turg is Les interactions ent re les normes internatio nales relatives aux

droits de la personne (2 012) 30.

24 Kampala Convention preamble pa ra 11.

25 The preamble of the Kampa la Convention (para 12) states: ‘noting also the

mandate of the Internationa l Committee of the Red Cross to protect and as sist

persons affec ted by armed conict and other situ ations of violence’.

26 Kampala Convention ar t 7(3).

27 For details on the legal qu alication as a civi lian under IHL, see a rt 4 of the

Fourth Geneva C onvention. For a commentary on this prov ision, see Jean

Pictet Commentary on Convention (IV) Relative to t he Protection of Civilian Persons

in Time of War ICRC, Geneva (1958) 45–51.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 85

https://doi.org/10.47348/AYIH/2020/a4

armed conict.28 This certainly explains the fact that there are several

references to IHL in the Convention.

Second, the Kampala Convention contains many expressions and

formulations specic to IHL, which i llustrates the fact that the wording

of the Convention was largely inspired by this body of law. It notably

provides that ‘States Parties undertake to respect and ensure respect

for the present Convention. In particular, States Parties shall [r]espect

and ensure respect for international humanitarian law regarding

the protection of internally displaced persons’.29 Furt hermore, the

Convention provides that ‘States Parties shall respect and ensure

respect for their obligations under international law, including ...

humanitarian law’.30 The expression ‘respect and ensure respect’

used in the formulation of these provisions is borrowed from IHL. It

is derived from Common Article 1 to the four Geneva Conventions

and Additional Protocol I, which provides that ‘[t]he High Contracting

Parties undertake to respect and to ensure respect’ for IHL .

This rule is now considered part of c ustomary IHL, applicable in both

IACs a nd NIACs. 31

According to the ICRC’s Commentary on this provision, the term

‘respect’ for IHL implies both a negative and a positive obligation for

States to take all necessary measures to ensure that the rules of this

body of law are respected by their organ s as well as by all other persons

or groups under their jurisdiction.32 The expression ‘ensure respect’

means that States, whether engaged in a conict or not, must take all

possible steps to ensure that international humanitaria n law rules are

28 For instance, IHL r ules include the prohibitions on att acking civi lians or civi lian

property, conducting ind iscriminate attac ks, starving civ ilians as a method

of warfare, destr oying objects indispe nsable to their surviva l, and carrying

out reprisals agai nst civilians and c ivilian propert y. Should displacements

take place, all possible meas ures should be taken to ensure that IDPs’ hyg iene,

health, nutrition and accom modation conditions are satisfactory. See among st

others Fourth G eneva Convention art 49(3); Additional Protocol II a rt 17(1);

Common Article 3 to t he Four Geneva Convention, rules s et forth in Additional

Protocol II.

29 Kampala Convention ar t 3(1)(f).

30 Ibid art 4(1).

31 See Henckaert s and Doswald-Beck Customary Inter national Humanitarian Law,

Volume I: Rules (2005) Rule 139 (ICRC Study on Customa ry IHL).

32 See ICRC Commentary on the First Geneva Convention: Convention (I) for the

Amelioration of the Condition of t he Wounded and Sick in Armed Forces in the

Field 2 ed (2016) paras 143–146. For some other like-minded academ ics, see,

for example, Claude Pilloud et a l (eds) Commentary on the Additional P rotocols

of 8 June 1977 to the Geneva Conventions of 12 Augu st 1949, under art 1(1) of

Additional Protocol I; Lau rence Boisson de Chazour nes and Luigi Condorelli

‘Common Article 1 of t he Geneva Conventions Revisited: Protec ting Collective

Interests’ (2000) 8 37 Int’l Rev Red Cross 67 at 69.

© Juta and Company (Pty) Ltd

86 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

respected by all, and in particular by parties to an a rmed conict.33

Considering the similar ity between these expressions as provided

for by IHL and those included in the Kampala Convention, there is

nothing, in our view, to prevent the interpretations to which these

expressions have been subjected in the context of IHL from being

retained for the purposes of implementing the Kampala Convention.

It can therefore be argued that by virtue of the provisions of the

Kampala Convention, States are under an obligation to do everything

they can to ensure that all the rules provided for by this Convention

are respected by their organs as well as by all others under their

jurisdiction. The following measures could, for example, be envisaged

to this end: the disseminat ion of the rules of the Kampala Convention,

the suppression of breaches of this Convention, providing adequate

humanitarian assista nce to IDPs in need, protecting IDPs’ homes or

camps from attacks, providing IDPs with the documentation they

need to assert their rights, etc.

On the other hand, by virt ue of the obligation to ‘ensure respect’

of the Kampala Convention, they must take all possible steps to ensure

that the rules enshrined in this instrument are respected by all.

Measures undertaken to this effect could include non-coercive ones

such as diplomatic proceedings, denunciations, public and private

protests, and formal complaints to the African Union. Coe rcive actions

could equally be used and may include non-militar y sanctions as well

as military measures taken either unilaterally or collectively within

the framework of the African Union (AU). In this regard, it should be

noted that under the Kampala Convention, the AU has an explicit right

33 ICRC Commentary on the First Geneva Convention op cit note 32 paras 120, 144

and 150. This view had al ready been expressed in Pictet’s 1952 Commentar y:

see Pictet (ed) Commentary on the First Geneva Convention for the Amelioration

of the Condition of the Wounded and Sick in Ar med Forces in the Field (1952) 26 .

See also, in the sa me vein, Inter-American Cour t of Human Rights Mapiripán

Massacre case Judgment, 20 05, para 114; Luigi Condorelli and Laurence

Boisson de Chazour nes ‘Quelques remarques à propos de l’obligation des États

de « respecter et fai re respecter » le droit international huma nitaire « en toute

circonstance »’ in Ch ristophe Swinarski (ed) Studies and Essays on Int ernational

Humanitaire Law and Red Cross Pr inciples (1984) 17 at 24. It should however be

noted that another competi ng school of thought takes a narrow v iew of the

obligation to ensure resp ect. It holds that the said obligation applies on ly in

respect of the State’s own popu lation and groups controlled by the State. It

argues that the re is no legal obligation to ensure respec t for IHL by other States

or by foreign non-State actors – on ly a moral obligation to do so. See, to that

effect, Frits K alshoven ‘The Undertaki ng to Respect and to Ensure Res pect in

all Circum stances: From Tiny Seed to Ripening Fr uit’ (1999) 2 YB Int’l Human

L 3 at 60; Zych Tomasz ‘The Scope of the Obli gation to Respect and to Ensure

Respect for Internationa l Humanitarian L aw’ (2009) 27:2 Windsor Yearbook of

Access to Justice 251 –270.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 87

https://doi.org/10.47348/AYIH/2020/a4

‘to intervene in a Member State pursuant to a decision of the Assembly

in accordance with Article 4(h) of the Constitutive Act in respect of

grave circumsta nces, namely: war crimes, genocide, and crimes against

hu ma ni ty ’.34 It also has the duty to ‘respect the right of States Parties

to request intervention from the Union in order to restore peace and

security in accorda nce with Article 4(j) of the Constitutive Act and thus

contribute to the creation of favourable conditions for nding durable

solutions to the problem of internal displacement.’35 The Kampala

Convention does not specify the modalities of such intervention,

whether it is undertaken at the initiative of the AU or at the request of

one of its member States. However, it has been argued that it could take

the form of a military intervention through the deployment of a peace

support operation.36 It could also take the form of the establishment

of a regional court to try cr imes committed against IDPs. In practice,

however, this provision has not yet been implemented.

Beyond all that, it should be noted that by recalling the obligation to

respect and ensure respect for IHL, the Kampala Convention takes full

account of the fact that violations of IHL are the most common cause

of internal displacement in armed con ict.37 Indeed, if al l parties to an

armed conict respec t the fundamental rules of IHL and international

human rights law, most displacement and its adverse consequences

could be avoided. Respecting IHL rules is therefore, logically, the best

means of preventing displacement from occurring in the rst place.38

The Kampala Convention does not impose obligations only on

States. It takes account of the fact that armed groups are key actors

of NIACs, and therefore places obligations on them as well for the

benet of IDPs. Still drawing f rom IHL, the Kampala Convention

denes armed groups as ‘dissident armed forces or other organized

armed groups that are distinct from the armed forces of the State’.39

The formulation ‘dissident armed force or organized armed group’

is borrowed from Additional Protocol I.40 More specically, the term

‘organized armed groups’ refers to one of the two essential elements

34 Kampala Convention ar t 8(1).

35 Ibid art 8(2).

36 See, for example, Dan Kuwal i and Frans Viljoen Africa and the Responsibilit y to

Protect: Article 4( h) of the African Union Constit utive Act (2014) 89 and Girmachew

Alemu A Study of the Af rican Union’s Right of Intervention against Geno cide, Crimes

against Humanity and War Crimes (2 011) 58.

37 See ICRC Strengt hening Legal Protection of Victim s of Armed Conicts Repor t

prepared for the 31st Internationa l Conference of the Red Cross and Red

Crescent, Geneva (2011) 21 (ICRC Strengthening Legal P rotection of Victims of

Armed Conicts).

38 Ibid.

39 Kampala Convention ar t 1(e).

40 Additional Protocol II ar t 1(1).

© Juta and Company (Pty) Ltd

88 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

used to classify a situation as a NIAC.41 IHL itself does not provide

the elements that would make it possible to determine that an

armed group is organised. However, this gap has now been lled by

jurisprudence and doctr ine which have identied and highlighted the

relevant elements for assessing the degree of organisation of an ar med

group. These elements include the existence of an organisational c hart

indicating a command structure, the authority to launch operations

bringing together different units, the ability to recruit and train new

combatants, or the existence of internal rules.42

The inclusion of a denition of armed groups and references to

these actors raised much debate and controversy during the t ravaux

préparatoire s of the Kampala Convention.43 Several States ex pressed

concern that including such groups in the Convention could

inadvertently confer legitimacy on them.44 Sudan, Egy pt and Libya

even proposed at one point in the negotiations that all references to

armed groups should simply be deleted from the text.45 Fortu nately,

after long and heated debate, States came to the reasonable conclusion

that the removal of references to ‘armed groups’ would amount

to denying their existence and the importance of holding them

accountable for their actions.46 Moreover, by taking armed groups into

account in the context of the provisions aimed at protecting persons

who are victims of internal d isplacement as a result of armed conict,

the Kampala Convention is fully in line with IHL, which imposes

equal obligations on States and armed groups in the context of NIACs.

Indeed, armed groups are one of the main protagonists of N IACs, the

majority of which are on the African continent.47 It would have been

regrettable if obligations in terms of the protect ion of victims of forced

displacement due to armed conict, particularly those under the

control of these armed groups, had not also been attributed to them.

41 The two elements requ ired for a situation to be qualie d as NIAC are the

intensity of the violence a nd the organisation of partie s. For details, see Vité

op cit note 14.

42 See for example Internationa l Criminal Tribuna l for the former Yugoslavia

(ICT Y), Prosecutor v Boskoski, Case No. IT0 4-82, Judgment (Trial C hamber),

10 July 2008, para 1, par as 199–203. See also ICT Y, Prosecutor v Limaj, Case

No. IT-03-66 -T, Judgment (Trial Chamber), 30 November 20 05, paras 94–134;

IC TY, P rosecutor v Haradinaj, Case No. IT-04 -84-T, Judgment (Trial Chamber),

3 April 200 8, para 60.

43 See also Okello op cit note 6 at 365.

44 Ibid.

45 Ibid.

46 Ibid.

47 For details, visit RU LAC: The Rule of Law in Armed C onict Project

database available at ps://www.rulac.org/browse/conic ts> (accessed on

21 Augu st 2021).

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 89

https://doi.org/10.47348/AYIH/2020/a4

By taking armed groups into consideration, the Convention therefore

reects the nature of internal displacement in Africa, where the root

cause of most internal displacement can undoubtedly be traced to

NIAC s.48 In this context, the following clarication – ‘nothing in this

Convention shall be construed as affording legal status or legitimizing

or recognizing ar med groups and that its provisions are without

prejudice to the individual criminal responsibility of their members

under domestic or international criminal law’49 – is fundamental. In

fact, it perfectly addresses t he concern that references to armed groups

may be interpreted in such a way as to impede the lawful government

in its legitimate repression of armed activities. This clarication is also

borrowed from IHL.50

The Kampala Convention also reaf rms the fundamental princ iples

of humanitarian assistance as enshrined in IHL. Indeed, States are

obliged to uphold and ensure respect for the humanitaria n principles of

humanity, neutrality, impartiality and independence of humanitarian

actors.51 In other words, they are required to refrain from politicising

humanitarian assistance.52 Armed groups, for their part, are under a

negative obligation to refrain from obstruct ing humanitarian assista nce

and the passage of all relief consignments, equipment and personnel

to internally displaced persons.53 Humanitarian organisations are not

omitted. Their humanitar ian operations must be neutral, independent

and conducted in accordance with the laws of the State in which they

operate.54 As stressed by Adama Dieng, humanitarian organisations

should avoid condemning States at the expense of IDPs.55 This could

indeed lead States to adopt actions which may directly or indirectly

endanger the lives and well-being of the displaced, leaving them in a

protection vacuum or at risk of physical harm.56

These various reafrmations of IHL, as well as the references

made to the main legal instruments that make up this body of law,

are of fundamental importance. They can be analysed as a sign of

48 Flavia Zorzi Gu istiniani ‘New Hope s and Challenges for the Protec tion of

IDPs in Afr ica: The Kampala Convention for the Pr otection and Assistance

of Internally Displac ed Persons in Afric a’ (2011) 39:2 Denv J Int’l L & Pol’y

347 at 358.

49 Kampala Convention ar t 15(2).

50 See para 4 of Common Ar ticle 3 to the four Geneva Conventions. See also a rt

3 of Additional Protocol II.

51 Kampala Convention a rt 5(8).

52 See Dieng op cit note 5 at 276.

53 Kampala Convention ar t 7(5)(g).

54 Ibid art 6(1) and (3).

55 See Dieng op cit note 5 at 277.

56 See also Mir iam Bradley Protecting Civilians in War: The ICRC, U NHCR, and their

Limitations in Inter nal Armed Conicts (2016) 130 –136.

© Juta and Company (Pty) Ltd

90 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

the attachment of African States to the rules contained in the main

IHL legal instruments in whose elaboration they did not participate.57

Indeed, in 1949, when the four Geneva Conventions were adopted, the

vast majority of African States were not yet sovereign and there fore did

not participate in the Diplomatic Conference that led to the adoption

of these instruments, which form the basis of IHL.58 In this respect,

IHL is sometimes presented as being esse ntially a European law.59 Some

authors have even argued that the failure of the spread of IH L in Africa

was due to African States and their people distrusting a European-

inspired legal framework that did not really safeg uard their interests

during the wars of decolonisation.60 The inclusion of these provisions

in the framework of the elaboration of the Kampala Convention

therefore invalidates such theses and demonstrates Africa’s adherence

and commitment to the guarantees of treatment set out in these

instruments .61 However, African States should go beyond proclaiming

their commitment to these guara ntees of treatment by taking concrete

steps to ensure that those who are the main beneciaries of these

guarantees actually enjoy them.

Third, the Kampala Convention contains a sa feguard clause of IHL.

Article 20(2) of the Convention explicitly and rmly proclaims that–

[t]his Convention shall be without prejudice to the huma n rights of

internally displace d persons under … applicable instru ments of …

international humanita rian law. Similarly, it shall in no way be under-

stood, construed or inter preted as restricting , modifying or imped ing

existing protec tion under any of the instruments mentioned herein.

The interpretation that should be inferred f rom this is that in the event

of a conict of rules or interpretation that would alter or undermine

the protection offered by the main universal IHL instruments, the

regional rule provided for in the Kampala Convention should be

absolutely set aside in favour of the international norm. Moreover,

there is no provision in this Convention that is contrary to the r ules of

IHL. All the provisions contained therein do not therefore challenge

the integrity of universal IHL treaties. Moreover, and as the following

developments demonstrate, the provisions of the Kampala Convention

contribute to the development of IHL provisions.

57 For details, see Steve Tiw a Fomekong La contribution de l’Union afr icaine au droit

international humanitaire (doctora l thesis, Université Laval, 2020) 132.

58 Ibid.

59 Voir Mutoy Mubiala « Les États afr icains et la promotion des principe s

humanitaire s » (1989) 71:776 RICR 97 at 103.

60 Thierry Hentsc h Face au blocus. La Croix-Rouge internat ionale dans le Nigéria en

gue rre (1967-1970) (19 74) 5– 8.

61 See Fomekong op cit note 57 at 132–133.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 91

https://doi.org/10.47348/AYIH/2020/a4

3 TO WHAT EXTENT DO THE HUMANITARIAN LAW

PROVISIONS OF THE KAMPALA CONVENTION

STRENGTHEN THE LEGAL PROTECTION OF

CONFLICT-INDUCED IDPS?

The aim here is to explore the main human itarian law provisions

contained in the Kampala Convention and to demonstrate the extent

to which they enrich or reinforce the legal protections set forth in the

universal rules of I HL for the benet of conict-induced IDPs. In doing

so, emphasis is placed on rules which have so far gone unnoticed, or

which have received insufcient attention.

3.1 The strengthening of the prohibition of forced or

arbitrary displacement of populations

Treaty and customary IHL prohibits forced displacement within

the borders of a country or across international borders. The

prohibition of forced displacement is expressly stated in Article 17(1)

of Additional Protocol II, which states that ‘[t]he displacement of the

civilian population shall not be ordered for reasons related to the

conict unless the security of the civilians involved or imperative

military reasons so demand’. This provision is now considered part

of customary IHL applicable in NI ACs.62 Several reafrmations of this

prohibition can be found in the Kampala Convention. Indeed, in line

with the international rule set out above, the Kampala Convention

proclaims that ‘[a]ll persons have a right to be protected against

arbitrary displacement’, 63 including in times of armed conict. It

further requires States Parties to ‘[r]efrain from, prohibit and prevent

arbitrary displacement of populations’.64 The prohibition of arbitrary

displacement thus provided for by the Kampala Convention not

only applies to States, but also extends to armed groups. Indeed, the

Convention also specically prohibits armed g roups from carrying

out ‘arbitrary displacement’.65 These regional provisions not only

contribute to the reafrmation of equivalent provisions in the main

IHL instruments, but also develop them in several respects.

First, it should be noted that the Kampala Convention explicitly

enshrines an individual right for each person to be protected against

internal displacement. While IHL prohibits the displacement of the

civilian population as a whole, it does not explicitly provide for such

62 See ICRC Study on Custom ary IHL op cit note 31 Rule 129B.

63 Kampala Convention ar t 4(4).

64 Ibid art 3(1)(a).

65 Ibid art 7(5)(a).

© Juta and Company (Pty) Ltd

92 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

an individual right. This right, which is the crux of the regime of

protection from arbitrary displacement, elevates the protection from

forcibly internal displacement and transforms an ethical consideration

into a specic right that anyone can claim and for which State

accountability may be demanded.66

Second, while IHL simply prohibits parties from forcibly displacing

people, the Kampala Convention goes further by also specically

requiring States to take the necessar y measures to ‘prohibit’ and

‘prevent’ such displacement. Such additional protective measures are

not specically provided for in IHL . The duty to ‘prohibit’ internal

displacement implies that States must adopt legislative measures

specically prohibiting arbitra ry displacement. In that regard, it should

be noted that the Kampala Convention explicitly provides that States

Parties ‘shall declare as offences punishable by law acts of arbitrary

displacement that amount to genocide, war crimes or crimes against

hu ma ni ty ’.67 This provision is ground-breaking in the eld of IDPs’

protection since it is the rst time that the violation of the right not

to be arbitrarily displaced is explicitly qualied as an international

crime. The Kampala Convention also specically requires States to

take the necessary measures to ensure the accountability of relevant

non-State actors for acts of arbitrary displacement or complicity in

such acts.68 The explicit enshrinement of this measure is important

in light of the fact that the activities of multinational corporations,

private military and security companies, and other non-State actors

involved in the exploration and exploitation of economic and natural

resources in Africa have in the past caused and continue to cause the

widespread arbitrary displacement of populations.69 The aim here is to

deter these actors from causing arbitrar y displacement, or to prevent

their impunity for such acts.

The duty to ‘prevent’ internal displacements implies that the State

must not only refrain from creating situations that could give rise to

forced internal displacement, but must also take the necessar y measures

to ensure that persons under its jurisdiction, as well as actors involved

in armed conicts to which it is not a party, do not create situations

that could give rise to such displacement. This interpretation is based

upon Article 3(1), which requires States not only to ‘respect’, but also to

‘ensure respect’ for the provisions of the Kampala Convention.

66 Romola Adeola ‘The Kampala Conve ntion and the Right not to be Arbitrar ily

Displaced’ (2018) 59 FMR 15 at 15.

67 Kampala Convention ar t 4(6).

68 Kampala Convention ar t 3(1)(h)(i).

69 Daniëlla Dam-de Jong Internat ional Law and Governance of Natural Resources in

Conict and Post-Conict Sit uations (2015) 1–3 0.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 93

https://doi.org/10.47348/AYIH/2020/a4

Moreover, under the relevant provision of IHL, to be considered

as forced, and therefore prohibited, displacement of the civilian

population must have been ‘ordered’.70 The Kampala Convention for

its part prohibits a wider category of forced displacement, regardless

of whether its is ordered or not. It generally prohibits arbitrary

displacement, which is broadly dened as including, without being

limited to, the following acts:

a. [d]isplacement based on policies of rac ial discrimination or other

similar pract ices aimed at/or resulting in altering t he ethnic,

religious or racial compo sition of the population;

b. [i]ndividual or mas s displacement of civilians in sit uations of

armed conict, u nless the security of t he civilians involved or

imperative militar y reasons so demand, in accordance w ith

international humanitarian law;

c. [d]isplacement intentionally used as a method of warfare or due to

other violations of international hu manitarian law in situations

of armed conic t;

d. [d]isplacement caused by generalized violence or violations of

human r ights;

e. [d]isplacement as a result of harmful practice s;

f. [f]orced ev acuations in cases of natura l or human made disasters

or other causes if the evac uations are not required by the safet y

and health of those affected;

g. [d]isplacement used as a collective punishment;

h. [d]isplacement caused by any act, event, factor, or phenomenon

of comparable gravity to al l of the above and which is not

justied under intern ational law, including human rights and

international humanitarian law.

It is curious, however, that some observers argue that the Kampala

Convention does not dene the term ‘arbitrary displacement’ and

thus conclude that it is not particularly helpful in identif ying acts that

may be considered arbitrary.71 The enumerative approach retained

70 See also Carly n Carey ‘Internal Di splacement: Is Prevention through

Accountability Possible? A Kosovo Cas e Study’ (1999) 43:1 Am U L Rev 243

at 267. For a contrary position, see Jan Willm s ‘Without Order, Anything

Goes? The Prohibition of Forced D isplacement in Non-international A rmed

Conict’ (20 09) 875:91 Int’l Rev Red Cross 547–656. This aut hor argues that an

interpretation base d on the purpose and the object ive of Additional Protocol II

supports the view t hat IHL prohibits forced displacement whether it is order ed

or not. According to her, requir ing an order could encourage governme nts to

use indirect me ans of coercion to displace the civil ian population.

71 Laurence Juma ‘T he Narrative of Vulnerabilit y and Deprivation in Protect ion

Regimes for the Interna lly Displaced Persons (IDPs) in Afric a: An Appraisal of

© Juta and Company (Pty) Ltd

94 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

in the Convention seems to us to be the best one that could have

been adopted, especially since it expressly and clearly identies the

acts that are prohibited by international law, including IHL, and that

are very often the cause of arbitrary displacements. In this sense,

the denitive approach adopted has the effect of addressing t he root

causes of displacement.72 If a denition that is rather too conventional,

precise and closed had been retained, much would have depended on

interpretation. This would have led to divergent interpretations which

could have impeded compliance with this provision in one way or

another. Moreover, the denition adopted by the Kampala Convention

is much broader and more detailed than the one mentioned in the

Guiding Principles.73 The expression ‘[d]isplacement caused by any

act, event, factor, or phenomenon’ clearly indicates that the list of

causes set out in the above-mentioned denition is not exhaustive.

In other words, the denition allows for circumstances other

than those specica lly listed to be taken into consideration.74 The

inclusion in the Kampala Convention of a non-exhaustive list of acts

considered to be prohibited displacement limits the risk of divergent

interpretations and could therefore facilitate respect for the prohibitions

set out in the Convention.

It follows from the denition mentioned above, particularly

paragraph (b), that in times of armed conict, there are exceptional

circumstances in which internal displacement may be consistent with

IHL and therefore not qualif y as arbitrary. These include circumstances

where such displacement is motivated by ‘the security of the civilians

involved’ or by ‘imperative military reasons’. These exceptional

circumstances are expressly provided for in IHL, and in part icular in

Article 17 of Additional Protocol II mentioned above. In both cases,

it must be a matter of serious necessity and not vexatious measures,

or measures intended simply to serve the interests of one of the

parties to the armed con ict. Indeed, military necessity as a g round

for derogation from the rule always requires the most meticulous

assessment of the circumstances.75 The situation should be scrutinised

most carefully as the adjective ‘imperative’ reduces the circumstances

in which displacement may be carried out.76 It is clear that imperative

the Kampala Convention’ (2012) 16 Law, Democracy & Develop ment 219 at 231;

Romola Adeola Emerging Issu es in Internal Displacement in Africa ( 2021) 52 .

72 See also Birga nie Addis ‘An African Initiative for t he Protection of the Rights of

the Internally Di splaced People’ (2010) 10:1 Hum Rts L Rev 179 at 190.

73 Guiding Pri nciples, Principle 2. The list of ac ts provided in this pri nciple is

much shorter.

74 Guistin iani op cit note 48 at 354.

75 Claude Pilloud et al op c it note 32 at 1473 para 4853.

76 Ibid para 4854.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 95

https://doi.org/10.47348/AYIH/2020/a4

military reasons c annot be justied by political motives.77 For example,

it would be prohibited to move a population in order to exercise more

effective control over a dissident group.78

With regard to displacements motivated by the security of the

civilian population, it is obvious that a displacement designed to

prevent the population from being exposed to ser ious dangers cannot be

expressly prohibited.79 This may include situations where populations

are critically threatened by the effects of military operations or where

they are at risk of being subjected to intense bombing. However, even

in those circumstances where displacement may be permissible under

IHL, it is believed that it must be carr ied out in accordance with due

process of law – that is, meeting minimum procedural guarantees.80

While the Kampala Convention sets out minimum standards for

authorised displacement in situations of natural disasters, and more

specically climate change,81 it does not do so for authorised conict-

induced displacement. In this sense, the Guiding Principles are more

progressive than the Kampala Convention since they set out min imum

standards for all forms of authorised displacement, including those

carried out in situations of armed con ict. Echoing the Fourth Geneva

Convention, the Guiding Principles require that–

[p]rior to any decision requiri ng the displacement of persons, the

authorities concerned shall e nsure that all feasible alternatives

are explored in order to avoid displacement a ltogether. Where

no alternatives exist, a ll measures shall be taken to m inimise

displacement and its adverse effe cts ... [and] shall ensure, to the

greatest practicable extent, t hat proper accommodation is provided

to the displaced persons, t hat such displacements are effecte d in

satisfactory conditions of safety, nutrition, health and hygiene, and

that members of the same fa mily are not separated.82

This provision furt her emphasises the fact that internal displacement

must be exceptional, as well as the need to mitigate as much as

possible the adverse consequences that may result from it, notably

by accompanying it with a minimum of humanitarian safeguards.83

Insofar as the Convention clearly marks its commitment to the

humanitarian law provisions that preceded it, it can be a rgued that

77 Ibid.

78 Ibid.

79 Ibid para 4853.

80 Adeola ‘The Kampala Convent ion and the Right not to be Arbitrar ily Displaced’

op cit note 66 at 16.

81 Kampala Convention ar t 5(4).

82 Guiding Pri nciples, Principle 7.

83 Pictet op cit note 27 at 281.

© Juta and Company (Pty) Ltd

96 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

such measures should also be taken into account in the context of the

implementation of the Kampala Convention.

Last but not least, the prohibition of forced displacement under

IHL is explicitly provided for only in NI ACs. It therefore has a

more limited scope of application than the prohibition of arbitrary

displacement under the Kampala Convention, which is applicable in

both IACs and NIACs. Mehar i Taddele Maru does not completely share

this view. Commenting on the term ‘armed conict ’ as used in the

context of the Kampala Convention, he argues that this expression

‘refers to civil war’,84 ie to NIACs. He therefore concludes that ‘wars

between States’85 ie IACs are not directly covered by the Kampala

Convention.86 According to him, this would be a limitation of the

Kampala Convention.87 The author does not, however, put forward any

reasons for such an interpretation. In our view, such an interpretation

is erroneous. While the Ka mpala Convention does not dene the term

‘armed conict’, there is nothing in the Convention to indicate that

the term refers only to NIAC situations, dened as armed conicts

in which at least one of the parties involved is non-governmental.88

Moreover, the multiple references in the Kampala Convention to the

IHL provisions applicable in both IACs and NIACs could be considered

as sufcient indication that the Convention applies to both categories

of armed conict covered by IHL .

3.2 The strengthening of the right of IDPs to recognition

of their legal personality

Legal personality refers to the ability to hold rights and be subject to

obligations. For the natural person, legal personality makes it possible

to recognise the rights of the human b eing that will protect him or her

and his or her property.89 The fundamental importance of protecting

the right to recognition as a person before the law in ti mes of crisis

is afrmed in A rticle 4(2) of the International Covenant on Civil

and Political Rights and Art icle 27(2) of the American Convention

on Human Rights, which provide that this right is non-derogable.

Thus, even in times of armed conicts, the right to legal personality is

expressly regarded as non-derogable.

84 Maru op cit note 15 at 112.

85 Ibid.

86 Ibid.

87 Ibid at 113.

88 For details, see Vité op cit note 14 at 75–83.

89 Xavier Bioy « Le droit à la pers onnalité juridique » chron. no 12 R DLF 2012,

available at uedlf.com/droit-fondamentaux/le- droit-a-la-per

sonnalite-jur idique/> (accessed on 21 August 2021).

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 97

https://doi.org/10.47348/AYIH/2020/a4

The enjoyment of the rights and prerogatives deriving from

legal personality is generally subject to the presentation or provision

of documentary evidence establishing a person’s legal status,

including civil status, or other identity documents. However, internal

displacement often results in the loss of personal papers and identity

documents. In many cases, displaced persons do not possess certain

documents or have lost them. They are then faced with a multitude

of problems: they cannot prove their identity, claim property, move

freely, or receive social or humanitarian assistance.90 Indeed, in many

situations, IDPs can claim their rights or access social assistance only

upon the presentation of certain documents such as an identity card,

passport, birth or mar riage certicate, diploma, health and social

insurance certicates, or property title.91 This can perpetuate the

vulnerability of cer tain groups, such as female-headed households and

ethnic minorities.92 The rules of IHL applicable to IACs cover some

aspects of these problems, explicitly recognising the right of children

and civilian internees to recognition of their legal personality and

to obtain documents establishing their legal status.93 However, the

personal scope of the application of these rules is very limited, as they

cover only a specic category of vulnerable persons. Moreover, these

rules do not specically take into account all the vulnerabilities of

IDPs outlined above.

While the issues related to the protection of the right to

recognition of the legal personality of I DPs were sufciently addressed

in the drafting of the Guiding Principles,94 it is worth noting that

the Kampala Convention goes further t han the Guiding Principles

in terms of protecting this right. Indeed, the Kampala Convention

reafrms the Guiding Principles by stating that the States Parties

shall issue the documents that IDPs need to enjoy their rights,

including passports, identity papers, bir th certicates and marriage

certicates.95 Still building on the Guiding Principles, the Kampala

Convention also provides that States shall facilitate the obtaining of

new identity documents or the replacement of documents lost during

the displacement without imposing undue conditions on them.96

However, it goes further by specically providi ng that ‘[t]he failure

90 See ICRC Strengthe ning Legal Protection of Victims of Ar med Conicts op cit

note 37 at 21.

91 Ibid.

92 Ibid.

93 See Fourth Ge neva Convention art 50(2) and Additional Protocol I ar t 78(3).

94 See Guiding Pr inciples, Principle 20.

95 See Kampala Convent ion art 13(2).

96 Ibid art 13(3).

© Juta and Company (Pty) Ltd

98 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

to issue internally displaced persons w ith such documents shall not

in any way impair the exercise or enjoyment of their human rights’.97

This additional and new provision addresses one of the serious

problems that IDPs generally face. As noted above, very often IDPs

can claim their rights or access social assistance only if they can

produce certain documents such as an identity card, passport, birth

or marriage certicate, diploma, health and social security certicates,

or property deeds. Lack of these documents may also hinder their

return or the search for other durable solutions, particularly in

the event of a dispute over property or inheritance.98 The Kampala

Convention provides a practical solution to these challenges and helps

to reduce the vulnerability of IDPs by stating that ‘[t]he failure to issue

internally displaced persons w ith such documents shall not in any

way impair the exercise or enjoyment of their human rights’. Indeed,

while under the provisions of the Guiding Pr inciples the enjoyment by

IDPs of some of their rights remains conditional on the presentation

of ofcial documents, with States simply being required to facilitate

the issuance of new documents or the replacement of documents lost

during displacement, the Kampala Convention rules go beyond this

by also requiring that the non-issuance of documents should not be

used as a reason to impede IDPs’ enjoyment of their rights. Displaced

persons should therefore be able to claim their rights or access social

and humanitarian assistance even if a required document could not

be issued or has not yet been issued. They should in no way be denied

protection to which they are entitled based on the simple fact that

they cannot present a given document asserting their legal status or

their rights.

3.3 The specic protection of IDPs’ camps

The use of IDPs’ camps is a practical solution to the problem of

internal displacement, particularly in acute crisis situations, when

large numbers of IDPs arrive at a location.99 However, these camps are

very often exposed to the risks of direct attacks, in ltration by armed

groups, and extor tion.100 The Kampala Convention takes account of

these problems and sets out specic provisions to prevent them. It

notably requires States to

97 Ibid.

98 ICRC International Humanitarian Law and the Challenges of Contemporary Armed

Conicts op cit note 16 at 20.

99 Ibid.

100 Ibid.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 99

https://doi.org/10.47348/AYIH/2020/a4

[r]espect and maintain the civilian and humanitarian character of the

places where internally di splaced persons are sheltered and safeg uard

such locations against in ltration by armed groups or elements

and disarm a nd separate such groups or elements from internal ly

displaced persons.101

Non-State armed groups must abstain from ‘[v]iolating the civilian

and humanitarian character of the places where internally displaced

persons are sheltered and shall not inltrate such places’.102

These provisions constitute a welcome development vis-à-vis the

Guiding Principles, which are limited to the assertion that IDPs ‘shall

be protected ... against ... attacks against their camps or sett lements’.103

They derive mainly from the principle of distinction, which provides

that parties to an ar med conict must ‘at all times disti nguish between

the civilian population and combatants and between civilian objects

and military objectives and accordingly shall direct their operations

only against m ilitary objec tives’.104 The Kampala Convention provisions

mentioned above develop the protection provided by this principle

and adapt it to the specic situation of IDPs’ camps, whose protection

remains a major issue in armed conicts. Indeed, these regional

provisions are formulated in absolute terms. They are obligations of

result which require States to do their utmost to achieve the aims

set out in these provisions: they must take the necessary measures

to respect, ensure respect for, and maintain in all circumsta nces the

civilian and humanitarian character of IDPs’ camps. It can thus be

argued that these provisions are intended to provide IDPs’ camps with

absolute immunity from attack. The provisions of IHL do not provide

such specic and absolute protection. This illustrates the progressive

nature of the protection offered by the Kampala Convention.

The Kampala Convention also sets out specic measu res aimed

at maintaining and protecting in all circumstances the civilian and

humanitarian cha racter of these camps and thus preventing them from

losing their immunity from attack. These measures include ensuring

that IDPs do not engage in subversive activities,105 preventing I DPs’

camps from being inltrated by armed groups and, where necessary,

separating armed groups f rom the IDPs. In fact, these provisions imply,

inter alia, that States must take the necessary measures to ensure that

IDPs hosted in camps do not take part in hostilities, and to prevent

101 Kampala Convention a rt 9(2)(g).

102 Ibid ar t 7(5)(i).

103 Guiding Pr inciples, Principle 10(2)(d). See also Guistin iani op cit

note 48 at 366.

104 See Additional P rotocol I art 48, as well as the ICRC St udy on Customary IHL

op cit note 31, Rules 1 and 7.

105 Kampala Convention a rt 3(1)(f).

© Juta and Company (Pty) Ltd

100 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

these camps from being used as bases for military training, and for

the rest and recruitment of combatants. Such actions could act ually

raise suspicions about the civilian and humanitarian character of the

IDPs’ camp and, as a result, expose them to the risk of armed attack.106

The above provisions also imply that all necessary measures should

be taken to prevent the presence of armed forces and armed groups,

combatants or other armed elements in IDPs’ camps. Indeed, ar med

attacks may be carried out against such camps by belligerents if they

become aware that enemy combatants have taken refuge therein or if

they believe that the camps are in fact being used as bases for military

training, and for the rest and recruitment of combatants.

3.4 The specic protection of local host communities

of IDPs

The Kampala Convention provides specic protections for local and

host communities of IDPs, further illustrating its innovative and

progressive character. The expression ‘host communities’ refers to

communities where IDPs live in host families, in nearby buildings or

open spaces.107 These communities play a fu ndamental role in assisting

IDPs. In Africa, in pa rticular, victims of internal displacement have

always been, and still are, able to benet from the long tradition of

hospitality and humanism of African peoples through local host

commun ities.108 On the other hand, they are also severely affected

by internal displacement. In fact, frequent population displacement

places greater and unexpected pressu re on the capacities and resources

of the communities in which they settle and, as a result, increases the

vulnerabilities and specic needs of these communities.109 However,

no legal instrument in force at the universal level provides specic

protection for these communities. Moreover, in practice, these

communities do not often receive special attention in the context of

managing displacement crises,110 even though they are a lso exposed

to the consequences of armed conict and therefore deserve to be

protected. Besides, protecting and assisting these communities would

106 Fomekong op cit note 57 at 181.

107 Katherine H aver Out of Site: Building Better Respon ses to Displacement in the

Democratic Republic of Congo b y Helping Host Families Oxfam International

Research Report (Se ptember 2008) 4.

108 See Kampa la Convention preamble para 4.

109 See, for example, S McDowel l Internal Displacement in Nor th Kivu: Hosting,

Camps, and Coping Mechanisms prepared for UNICEF DRC and CAR E DRC (April

2008); Anne Dav ies IDPs in Host Families and Host Communities: Assistance for

Hosting Arrangement s (2012).

110 See for example Ground Truth S olutions Renforcement de la redevabilité envers les

populations affectées (2020) 5–6.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 101

https://doi.org/10.47348/AYIH/2020/a4

go a long way towards building their capacity to assist IDPs and thus

alleviate, however modestly, the burden on States and humanitarian

agencies.111 The Ka mpala Convention takes sufcient account of these

issues and thus strengthens t he protection of IDPs.

Indeed, from its preamble, the Convention recognises the

fundamental role played by host communities in the protection and

assistance offered to IDPs.112 It further requires States, in addition to

legislative and institutional measures, to ‘[a]dopt other measures as

appropriate, including strategies and policies on internal displacement

at national and local levels, taking into account the needs of host

co mmun ities ’.113 This implies that all national measures aimed at

dealing with internal displacement must specically consider and

address the needs of host communities. The aim here is to ensu re

the best possible visibility of host communities in the general regime

governing the phenomenon of forced displacement, which would,

in turn, facilitate the systematic consideration of their needs in the

context of practical responses to internal displacement.

The importance attached to the protection of host communities

is furthermore reected in Article 5(5), which provides that ‘[S]tates

Parties shall assess or facilitate the assessment of the needs and

vulnerabilities of internally displaced persons and of host communities,

in cooperation with international organi zations or agencies’ [emphasis

added]. The assessment is therefore not limited to the needs and

vulnerabilities of IDPs, but must necessar ily take into account those

of local host communities. The term ‘need and vulnerability’ is not

accompanied by any limitation. It can be interpreted broadly to

include, without being limited to, basic necessities such as food, water,

clothing, as well as protection and sec urity needs, particularly in light

of the risks to which host communities are exposed while assisting

IDPs.114 The State does not have an exclusive competence to assess the

needs of host communities, although it has the primary responsibility

to do so. It is obliged to cooperate with international organisations or

agencies in this undertak ing. Cooperation with these actors is essential

as they usually have an explicit mandate and proven experience in

assessing the needs of vulnerable people.115 They can therefore be a

vital and valuable form of support to States facing the challenges of

internal displacement.116

111 Fomekong op cit note 57 at 181–182.

112 Ibid.

113 Kampala Convention a rt 3(2)(c).

114 Fomekong op cit note 57 at 182.

115 Ibid.

116 Ibid.

© Juta and Company (Pty) Ltd

102 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

Although this is not explicitly stated in the aforementioned

provision, it can be argued that the assessment of the needs and

vulnerabilities of host communities should involve a process of

consultation with the host communities.117 Similarly, steps should

be taken to allow for the participation of these communities in the

decision-making and monitoring of the assistance and protection

measures offered to them.118 Such an interpretation is consistent with

the aims and objectives of the provisions under rev iew. Indeed, in order

to have a complete mapping of the needs and vulnerabilities of host

communities and to provide adequate responses thereto, it is essential

to gather the expectations and opinions of the populations that are

supposed to be the main beneciar ies. This position is now widely

accepted, including by humanitarian organisations working in the

eld. Furthermore, it has been demonstrated that allowing vulnerable

populations to participate in decision-making processes related to

the humanitarian assistance and protection offered to them not only

contributes to their empowerment, but also to the implementation of

their fundamental rights.119

Moreover, according to Article 9(2)(b), States Parties shall–

[p]rovide internally displace d persons to the fullest extent practicable

and with the least possible delay, with adequate human itarian

assistance, which shal l include food, water, shelter, medical care and

other health services, sanitation, education, and any other necessary

social serv ices, and where appropriate, extend such assistance to local and

host communities [emphasis added].

Local and host communities are t herefore supposed to benet from the

humanitarian assista nce offered to IDPs. However, the formulation of

the provision is somewhat weakened by the term ‘where appropriate’.

In fact, in which situation or on what occasion would it be considered

appropriate or inappropriate to extend humanitarian assistance to local

and host communities? The French version of the text could provide

a solution to this question. The expression ‘where appropriate’ has as

equivalent the expression ‘en cas de besoin’ in the French authentic

version of the Kampala Convention. The term ‘en cas de besoin’ can

equally be literally translated into English as follows: ‘in case of need’.

If the expression ‘where appropriate’ is used here as a synonym of ‘in

case of need’, then the provision analysed here could be interpreted

in an evolutive manner to mean that whenever it is established

that host communities need humanitarian assistance, it should be

117 Ibid.

118 Ibid at 144.

119 Ibid.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 103

https://doi.org/10.47348/AYIH/2020/a4

offered to them on the same basis as to IDPs. This interpretation

would be consistent with the purpose of the Kampala Convention,

which is to provide protection and assistance to populations affected

by internal displacement.

3.5 Specic environmental protection in localities or

places where IDPs have sought refuge

Another progressive element of the Kampala Convention that deserves

to be highlighted is the consideration of environmental issues in IDP

settlement areas. Indeed, the Kampala Convention requires States

to ‘[t]ake necessary measures to safeguard against environmental

degradation in areas where internally displaced persons are located,

either within the jurisdiction of the State Parties, or in areas under

their effective control’.120 This is a major development of the protection

regime of IDPs, insofar as these persons are clearly dependent on

the environment for their survival, particularly for food, shelter,

energy, medicine, agriculture and income-generating activities.121

Environmental degradation in IDP settlements or camps, generally

due to the unsustainable use of natural resources, can therefore have

a considerable impact on the well-being not only of the IDPs but also

that of their host communities.122 In addition, competition for scarce

natural resources such as rewood, water and grazing land can lead to

friction and create potential conict situations and insecurity. This is

particularly t he case in the Sahel, where the scarcity of water and other

natural resources, as well as the irrational use of available resources,

are conducive to inter-community conicts, which terrorist g roups

use to increase their terrorist acts.123 The Kampala Convention also

addresses these issues and, in an effort to reinforce the resilience of

IDPs and their host communities, it obliges States to take appropriate

measures to preserve the environment in I DP settlements. This implies

that they must put in place programmes and initiatives to improve

the sustainable management of the environment in order to limit the

degradation of environment and increase the resources available to

displaced persons and host communities. Exa mples of such measures

may include the implementation of programmes to ensure the

sustainable and rational management of natural resources in camps or

120 Kampala Convention a rt 9(2)(j).

121 See UNHCR « E nvironnement, catastrophes n aturelles et changeme nt climatique »

(20 June 2020), available at ww.unhcr.org/fr/environnement-catast rophes-

naturelles- et-changement-climatique.html > (accessed on 21 August 2021).

122 Ibid.

123 Rachel Cooper Nat ural Resources Management Strategies in the Sa hel Helpdesk

Report (2018) 5–8.

© Juta and Company (Pty) Ltd

104 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

settlements, the implementation of hygiene awareness and sanitation

promotion strategies and, to the extent possible, the provision of

adequate resources to IDPs and host communities, in order to ensure

the rational use of natural resources in camps or settlements.

3.6 The protection of specic vulnerable groups

The Kampala Convention also breaks new ground by setting out

specic provisions for particularly vulnerable groups among IDPs.

Article 9(2)(c) requires States to–

[p]rovide special protect ion and assistance to internally displac ed

persons with spec ial needs, including separ ated and unaccompanied

children, female head s of households, expectant mothers, mother s

with young childr en, the elderly, and persons with d isabilities or with

communicable diseases.

The use of the term ‘including’ indicates that the list of persons who

should receive protection that takes into account the specicity of their

needs and vulnerabilities is not exhaustive. It includes, without being

limited to, children, women, the elderly, people with disabilities, the

wounded and the sick, or people with communicable diseases. Among

these categories, children and women deserve particular attention

insofar as they represent a great proportion of populations of IDPs,

particularly in A frica.124

Internally displaced children are exposed to multiple risks. One of

the main risks they face is fa mily separation. This separation strips t hem

of a habitual system of protection.125 The removal of this protection,

coupled with the instability caused by displacement, places internally

displaced children at risk of many forms of abuse and exploitation,

such as trafcking, sexual violence and other harmf ul practices.126 If

all IDPs encounter challenges in meeting their basic needs, such as

access to adequate nutrition, potable water, shelter, clothing and health

124 For details see Fawole op cit note 15 concern ing children and Groth op c it

note 15 concerning women.

125 James Kunder T he Needs of Internally Displaced Women and Childre n: Guiding

Principles and Consi derations (1998) available at iefWeb https://reliefweb.

int/sites/reliefweb.int/les/resources/2E33B9CFFB3B8F7BC1256C7C004EFC

AA-UN ICEF.pdf> (accessed on 21 August 2021) 1.

126 Rathin Bandyopad hyay and Das Chandrani ‘R ights and Protection Regi me

for Internally Displac ed Women and Children: Towards the Formation of a

Metaframework’ (2013) 3 Kathmandu S chool of Law Review 166–186 at 171–172,

180; Roberta Cohen and Fra ncis M Deng Masses in Flight: The Global Cr isis of

Internal Displacement (19 98) 26.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 105

https://doi.org/10.47348/AYIH/2020/a4

care,127 sub-groups of IDPs have special needs, such as the estimated

6.6 million internally displaced children under the age of 5 years

who have particular nutritional needs.128 Besides, children who begin

their lives in situations of internal displacement are at risk of being

deprived of nationality and identity due to challenges with reg istering

their births.129 In addition, internally displaced children are very

often forcibly recruited into armed forces and groups, espec ially those

living in camps inltrated by armed groups.130 The above-mentioned

provision and other specic provisions of the Convention sufciently

address these child protection issues.

It should be noted from the outset that, drawing on the African

Charter on the Rights and the Welfare of the Child (ACRWC), the

Kampala Convention precisely denes a child as ‘every human

being below the age of 18 years’.131 No IHL instrument sets out an

unequivocal denition of the term ‘child’.132 Instead of a precise and

uniform denition of the term ‘child’, the Fourth Geneva Convention

and the two Additional Protocols simply set various age limits in their

provisions for children.133 The Convention on the Rights of the Child,

which sets out humanitarian law provisions, provides for a denition

that essentially refers to the legislation of the States that are par ty

to it for the purposes of the denition of the term ‘child’.134 Like the

127 Groth op cit note 15 at 8; UN Human R ights Council Report of the Represe ntative

of the Secretary- General on Human Rights of Inter nally Displaced Persons, Wa lter

Kalin: Addendum Operational Guidelines on Hu man Rights in Natural Disasters UN

Doc A/HRC/4/38/Add.1, 23 January 2006 , available at

org/docid/461e43ba2.html> (accessed on 21 August 20 21) para 13.

128 IDMC Global Report on Inte rnal Displacement 2020 op cit note 1 at 68.

129 Jonathan Todres ‘Birt h Registration: An Essent ial First Step Towards Ensuri ng

the Rights of All C hildren’ (2003) 10:3 Human Rights Brief 32–35 at 33.

130 Groth op cit note 15 at 228–229.

131 ACRWC art 2.

132 Naïri Arzo umanian and Francesca P izzutell « Victimes et b ourreaux : questions

de responsabilité liée s à la problématique des enfants soldats en A frique »

(2003) 852:85 RICR 827 at 829–831.

133 The age of 15 is retained in t he following provisions: art 14 (hospital and s afety

zones), art 23 (consignments of medica l supplies, food and clothing), ar ts 24

and 38 (various other sp ecial measures for chi ldren) of the Fourth Geneva

Convention. In art 24(3) (identi cation) of the same instrument, t he age

of 12 years has instead be en retained. On the other h and, the age of 18 has

been retained i n art 51(2) (forced labour) and art 68(4) (death penalty) of the

same instr ument.

134 Article 1 of t he Convention on the Rights of the Child prov ides that ‘a child

means every huma n being below the age of eighteen years u nless under the law

applicable to the child, majorit y is attained earlier’. The nationa l legislation

to which this provision r efers may lower or raise this age lim it, which will

depend on the legal system of eac h State. See Arzoumanian a nd Pizzutell op cit

note 132 at 831–832 .

© Juta and Company (Pty) Ltd

106 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

ACRWC, the Kampala Convention thus has the advantage of providing

protection to all children, regardless of their age, and not just to

children of a certa in age, as is the case with IHL legal instruments. Th is

has the advantage of allowing harmonised protection to be offered to

all children, regardless of their age.

The fact that Article 9(2)(c) places particular emphasis on ‘separated

and unaccompanied children’ as one of the groups of IDPs that must

receive special protection and assistance has led some commentators

to argue that the Kampala Convention fails to recog nise that all

internally displaced children have special needs.135 We do not entirely

share this view. While the Kampala Convention places particular

emphasis on separated and unaccompanied children, this does not

mean that it denies special protection to other children exposed to

other specic vulnerabilities. The word ‘including’ in the wording

of the provision indicates that the list of categories of persons whose

special needs are to be taken into account is not exhaustive. The

drafting h istory of this provision is not publicly available, but from our

point of view, the fact that separation from their families is t he main

risk to which children are e xposed could be the reason for the decision

to specically mention ‘separated and unaccompanied children’.

Indeed, as emphasised above, children are often separated from their

families during situations of internal displacement. The absence of

parents, family members and other habitu al forms of protection makes

separated and unaccompanied internally d isplaced children extremely

vulnerable. However, this does not mean that the specic needs of

all internally displaced ch ildren are not taken into account. In fact,

the Kampala Convention contains numerous other provisions that

take into account the many other protection issues to which children

are exposed, including A rticle 7(e), which protects children from the

phenomenon of child soldiers; Article 9(1)(d), which protects children

from sexual violence; and Ar ticle 13(4), which expressly recognises t he

right of children to obtain necessary identication documents.

Furthermore, we must bear in mi nd that the Kampala Convention,

although the rst regional legal instr ument dedicated to the protection

of IDPs, was preceded by several African regional legal instruments

that already took into account some of the needs of IDPs, including

internally displaced child ren. Indeed, as early as 1979, the Organisation

of African Unity stressed in its Declaration on the Rights and Welfare

of the Child that ‘[p]articular attention should be paid to the needs of

refugees and displaced children and that immediate measures should

135 Fawole op cit note 15 at 11–12.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 107

https://doi.org/10.47348/AYIH/2020/a4

be taken to improve their lot’.136 As an extension of this Declaration,

the ACRWC adopted some years later specically requires States to–

take all appropriate measure s to ensure that internally di splaced

children whether u naccompanied or accompanied by parents, legal

guardian s or close relatives, receive appropriate protection and

humanitaria n assistance in the enjoyment of the rights set out i n

this Charter and other international human right and humanitarian

instruments to whic h the States are parties.137

These provisions, which require that internally displaced children

be given special protection tailored to their specic needs, are a

useful complement to the specic provisions for children in the

Kampala Convention. Besides, the African Union Model Law for the

Implementation of the African Union Convention for the Protection

and Assistance to Internally Displaced Persons in Africa specically

recognises all interna lly displaced children as IDPs with special

needs.138 This further illustrates the fact that the Kampala Convention

is inclusive and does not intend to offer special protection only to

separated and unaccompanied internally displaced children.

Also worth highlighting is Article 7(1)(e), which deals with

the phenomenon of child soldiers, another serious risk to which

internally displaced children are generally exposed. This provision

specically prohibits armed g roups from ‘recruiting children or

requiring or permitting them to take part in hostilities under any

circumstances’. Until the adoption of the Kampala Convention,

no AU legal instrument specically imposed such an obligation on

armed groups. A similar obligation had previously been included in

the AC RWC139 and the Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Women (Maputo Protocol),140 but it

applies only to States. Article 7(1)(e) can therefore be considered as

a useful counterpar t to the equivalent obligations already contained

in these two instru ments. Furthermore, this provision offers greater

protection than the equivalent provisions that exist at the universal

level. Not only does the provision apply to all children without any

exclusion, ie to all persons under the age of 18 without exception,141

but it also prohibits all forms of recruitment of children in armed

136 Declaration on the R ights and Welfare of the Child para 12.

137 ACRWC art 23.

138 Africa n Union Model Law for the Implementation of the Af rican Union

Convention for the Protection a nd Assistance to Internal ly Displaced Persons

in Africa a rt 34(1).

139 ACRWC art 22.

140 Protocol to the Af rican Charter on Hum an and Peoples’ Rights on the Rig hts

of Women art 11.

141 Kampala Convention a rt 1(h).

© Juta and Company (Pty) Ltd

108 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

conict, whether conscription or voluntar y recruitment. Furthermore,

the provision prohibits not only the direct participation of chi ldren in

armed conict, as is the ca se with the main IHL universa l instrument,142

but also any form of indirect participation. Equivalent IHL provisions

are not as precise, strong and unequivocal. Str ictly speaking, they offer

absolute protection against any form of recruitment or part icipation of

children in conict only to those under 15 years of age.143

Women and girls also face signicant challenges, including the

risk of violence or sexual exploitation. In fact, it is widely admitted

that internally displaced women, as well as children, bear the brunt

of suffering and violence.144 Also, the breakdown of traditional

societal norms and the prevalence of female-headed households mean

that women suffer disproportionately from abuse, loss of home and

possessions, loss of social and cultural ties, and the termination of

employment and educational opportunities.145 Moreover, they face

difculties in accessing basic services such as food, water, shelter

and health care. The Kampala Convention takes account of these

difculties, and hence accommodates the unique vulnerabilities

of internally displaced women. Under the Kampala Convention,

States must ‘[p]rovide special protection and assistance to internally

displaced persons with special needs, including ... women heads

of household, pregnant women, mothers with young children’.146

They must also ‘[p]rovide special measures to protect and provide

for the reproductive and sexual health of displaced women, as well

as appropriate psychosocial support for victims of sexual and other

abuses’.147 These provisions complement IHL in that they give greater

visibility to internally displaced women in the legal regime for the

special protection of women. They also streng then the specic

protection of women against the various forms of abuse to which they

are generally exposed throughout the displacement process: denial of

the capacity to act as head of the family, lack of a space in the camps

for their hygiene needs, which exposes them to the risk of sexual

abuse, loss during displacement of identity documents required to

assert certain rights, etc. The Kampala Convention creates a strong

foundation for addressing these concerns. In addition, these provisions

are broadly formulated to take into account broader forms of violence,

142 Fomekong op cit note 57 at 194–197.

143 For detail s on the shortcomings of these unive rsal rules, see, for exa mple,

Arzoumani an and Pizzutell op cit note 132 at 827–855.

144 Judy A Benjamin ‘T he Gender Dimensions of Intern al Displacement: A Concept

Paper and Annotated Bibliog raphy’ (UNICEF, November 200 8) 2.

145 Ibid at 13.

146 Kampala Convent ion art 9(2)(c).

147 Ibid art 9(2)(d).

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 109

https://doi.org/10.47348/AYIH/2020/a4

such as deliberate infection with HIV/AIDs, forced impregnation,

forced sterilisation and sexual humiliation, all of which have been

frequently documented in conict and post-conict literature.148 This

interpretation is based on the denition of gender-based violence as

formulated in the Maputo Protocol, to which the Kampala Convention

expressly refers in its preamble.149 This denition is broad. It includes–

all acts per petrated against women which cause or could caus e them

physical, sexual, psychologic al, and economic harm, including

the threat to take such act s; or to undertake the imposition of

arbitrary rest rictions on or deprivation of funda mental freedoms in

private or public life in peace ti me or during situations of armed

conict or war.150

Additionally, Article 11 of the Maputo Protocol relating specically to

the protection of women in armed conicts commits States–

to protect … internally di splaced persons, against all for ms of

violence, rape and other forms of sex ual exploitation, and to ensure

that such acts are considere d war crimes, genocide and/or cri mes

against humanit y and that their perpetr ators are brought to justice

before a competent crimi nal jurisdiction.151

This is also a usef ul complement to the equivalent provisions provided

for by the Kampala Convention.

However, as rightly argued by some commentators, the above-

mentioned provisions of the Kampala Convention largely conne

considerations of women’s substantive protections within obligations

that arise only during d isplacement.152 Indeed, the Convention’s

provisions aimed at preventing the arbitrary d isplacement of

populations, as well as those aimed at protecting IDPs during their

return, do not specically account for any of the gender-specic

concerns previously mentioned, although they are more developed

than the equivalent provisions under the Guiding Principles.153

However, this aw is not fatal. Recourse to the Maputo Protocol

could in particula r help to ll this gap. The Convention may allow

internally displaced women to use the expansive denitions provided

in this Protocol to broaden and strengthen their claims for protection

from violence at all stages of displacement.154 Indeed, the provisions

of the Maputo Protocol set out above provide protection measures

148 Groth op cit note 15 at 235.

149 Kampala Convention pr eamble para 8.

150 Maputo Protocol art 1(i).

151 Ibid art 11(3).

152 Groth op cit note 15 at 235–237.

153 Ibid.

154 Ibid at 237.

© Juta and Company (Pty) Ltd

110 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

that apply to women before displacement, during displacement, and

during return.

Furthermore, in response to the argument that when considering

obligations for protection from displacement, within the prohibited

categories of arbitrary displacement enumerated in Article 4,

displacement based on policies of discrimination is conned to racial,

ethnic and religious discrimination, thereby excluding discrimination

related to sex or gender,155 it could be argued that the preamble to the

Convention recalls the following:

[mindful] that Memb er States of the African Union have adopted

democratic practices a nd adhere to the principles of non-

discrimi nation, equality and equal protec tion of the law under the

1981 African Charte r on Human and Peoples’ Rights, a s well as under

other regional and intern ational human rights law in struments.156

Article 18 of the African Charter on Human and Peoples’ Rights, to

which this provision refers, requires States to eliminate all forms of

discrimi nation against women and to ensure the protection of women’s

rights as stipulated in international declarations and conventions,

including IHL instr uments. A systematic interpretation of this

provision with the relevant provisions of the Kampala Convention

would support the argument that gender-based discr imination

that may result in forced displacement is prohibited as well. Such a

violation157 could indeed fall under the catchall provision of the

Kampala Convention, which states that ‘[d]isplacement due to other

violations of international humanitarian law in situations of armed

conict’ constitutes arbitrary displacement.158

To sum up, the provisions of the Kampala Convention develop and

reinforce the legal protection of conict-induced IDPs. These provisions

do not in any way diminish or contradict the general provisions of

IHL that preceded them. On the contrar y, they contribute to the

strengthening of the protective regime set out in these instruments

for the benet of IDPs. They could therefore serve as a usef ul source of

inspiration for future efforts to develop the international legal regime

for the protection of IDPs.

155 Ibid at 235.

156 Kampala Convention prea mble para 9.

157 Several IHL pr ovisions specically pr ohibit gender-based discrim ination.

These include Common A rticle 3 to the four Geneva Conventions , art 75 of

Additional Protocol I and a rt 4 of Additional Protocol II.

158 Kampala Convention a rt 4(4)(c).

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 111

https://doi.org/10.47348/AYIH/2020/a4

4 THE KAMPALA CONV ENTION AS A VECTOR FOR

THE FURTHER DEVELOPMENT OF RULES SPECIFIC

TO THE PROTECTION OF IDPS

The Kampala Convention should inuence the fur ther development of

conventional or customary rules relating specically to the protection

of IDPs, part icularly conic t-induced IDPs.

4.1 The further development of treaty rules

Through the adoption of the Kampala Convention, Africa has shown

leadership in efforts to curb t he phenomenon of internal displacement

and provide adequate protection for IDPs.159 As the former United

Nations High Commissioner for Refugees and current United Nations

Secretary-General has pointed out, ‘the Kampala Convention puts

Africa in a leading p osition when it comes to having a legal framework

for protecting and helping the internally displaced’.160 In the same

vein, Chaloka Beyani has stressed that ‘the Convention serves as an

“international model” for other regions to follow’.161 The Convention

should thus inspire the development, at the international level or

in other regional frameworks, of rules for the protection of IDPs.

Such a suggestion raises the question of the relevance of a possible

development of international treaty law in this area. While a minority

of proponents of a universal convention on internal displacement

argue that a binding legal instrument on internal displacement would

undoubtedly enhance the protection of IDPs and hold States Parties

accountable for failing to comply with their obligations under the

Convention,162 the vast majority of scholars argue that the elaboration

of an international convention on internal displacement is not a

viable or appropriate option.163 This position seems to be shared by the

159 Global Protection Cluste r Cadres normatifs sur le déplacem ent interne: Dévelop-

pements au plan mondi al, régional et national (2017 ) 11.

160 See ONU i nfos ‘UN Praises A frica for Leading Way with L andmark Treaty

Protecting I nternally Displaced People’ (6 December 2012) avail able at

news.un.org/en/story/2012/12/427562-un-praises-africa-leading-way-landmark-

treaty-protecti ng-internally-displaced> (accesse d on 21 August 2021).

161 Ibid.

162 See for example Luke T L ee ‘The Case for an Internat ional Convention on

Displaced People’ in James H Wi lliams (ed) Invisible Refugee s (2003) 465. See

also Dieng op cit note 5.

163 See for example Walter Käl in « Le futur des Princip es directeurs » (2008) Hors-

série Revue des mig rations forcées at 38–39; Walter Käli n How Hard is Soft Law?

The Guiding Princ iples on Internal Displacement an d the Need for a Normative

Framework Presentation at Roundtable Meeting R alph Bunche Institute for

International Stud ies CUNY Graduate Center (19 Decembe r 2001); Roberta

Cohen ‘The Guidin g Principles on Internal Di splacement: An Innovation in

© Juta and Company (Pty) Ltd

112 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

UN as well. Indeed, despite the alarming scale of the phenomenon of

internal displacement, the appeals of some States164 and the e xistence

of proposals for draft conventions, 165 no working group to negotiate a

legal instrument on the issue of forced displacement has so far be en set

up within the UN Human Rights Council, the main framework for the

development of such instruments. Several interesting arguments are

put forward in support of this position. First, t he multiple challenges of

drafting, ratifying and implementing such a convention are raised.166

Second, there is a fear that the development of new rules would weaken

existing rules and, since these rules would be specically devoted to

the protection of IDPs, could lead to a form of discrimination against

other victims who deserve as much protect ion as do IDPs.167 For these

reasons, it seems preferable to further promote the Guiding P rinciples

and, above all, to strengthen the implementation of IHL to prevent

internal displacement.168

Having said this, it should be noted that the possibility of drafting

an international legal instru ment on the protection of IDPs should

not be completely ruled out, even if there seems to be a reluctance to

create new binding rules in this area. The above-mentioned concerns

had been raised long before the Kampala Convention was drafted.169

However, as noted above, this Convention preserves the integrity of

IHL and strengthens the legal regime for the protection of IDPs at the

African regional level. It can therefore be argued that the adoption

of a universally applicable legal instru ment that specically and

precisely reafr ms IDPs’ rights and develops existing specic rules

while safeguarding IHL would not undermine the coherence of the

pre-exist ing legal framework.

Furthermore, as the President of the ICRC has stressed, ‘internal

displacement poses one of the most daunting humanitaria n challenges

International Stand ard Setting’ (20 04) 10 Global Governance 459 at 464 –465

(Cohen ‘The Guiding P rinciples on Internal Displacement’).

164 This is t he case of AU member States. See in thi s regard AU Common African

Position (CAP) on Humanitarian Ef fectiveness (2016) para 94.

165 See for example Ce ntre de recherche interdiscipl inaire en droit de

l’environnement, de l’aménagement et de l’urbanisme, C entre de recherche

sur les droits de la pers onne, équipes thématiques de l’OMIJ et Faculté de droit

et des sciences économiques de l’ Université de Limoges, « Projet de convention

relative au statut internat ional des déplacés environnementaux » (20 08) 39:1-2

RDUS 451– 505 .

166 See for exa mple Cohen ‘The Guiding Pri nciples on Internal Displ acement’ op

cit note 163 at 475–476.

167 Ibid.

168 ICRC St rengthening Legal Protectio n of Victims of Armed Conicts op c it note 37

at 21.

169 See Jean-Phi lippe Lavoyer « Réfugiés et per sonnes déplacées: droit inter-

national humanita ire et rôle du CICR » (2015) 812 RICR 183 at 201.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 113

https://doi.org/10.47348/AYIH/2020/a4

of tod ay’. 170 In 2020, it was estimated that more than 50 million people

had been forced to ee their homes as a result of armed conict, many

of them as a result of NIACs.171 While the current legal framework

remains relevant in ensur ing protection for these people, it does not

always provide effective solutions to the specic protection challenges

they face daily. As humanitarian agencies, and in particular the ICRC,

have pointed out, ‘providing adequate protection for these persons is

one of the most daunting tasks in humanitar ian work’,172 due, in part,

to the inadequacy of the relevant legal framework.173 A signicant part

of the international community has indeed endorsed a nd accepted

the persuasive authority of the Guiding Principles.174 However, these

principles remain non-binding. Moreover, they cannot, strict ly

speaking, serve as a basis for the international accountability of actors

who violate the rights of IDPs. This reinforces the arg ument that the

international community should explore the possibility of adopting a

legally binding international treaty to address the plight of IDPs. The

adoption of a specic international convention on IDPs would indeed

strengthen the legal framework for the protection of IDPs and thus

signicantly improve the plight of IDPs.

In addition, the number of IDPs around the world today is colossal.

This number continues to grow daily, mainly as a result of armed

conict. This number now far exceeds that of refugees, who constitute

the other category of victims of forced displacement.175 Refugees,

for their part, enjoy strong and well-established conventional and

institutional protection. They are covered by the 1951 Convention

relating to the Status of Refugees and its 1967 Protocol. These

instruments have now been ratied by almost all States and have

contributed to the development of general customary rules that

strengthen the refugee protection regime.176 Furthermore, the UNHC R

has a specic treaty mandate to ensure that the rights of refugees,

170 ICRC Intern al Displacement in Armed Conict – Facing Up to the Challenges ICRC

Report (November 2 009) 4.

171 See IDMC Global Report on Int ernal Displacement 2020 op cit note 1.

172 ICRC Streng thening Legal Protection of Vic tims of Armed Conicts op cit note 37

at 4.

173 Ibid.

174 For details, s ee Cecilia Jimenez-D amary ‘Foreword: The 20 th Anniversar y of

the Guiding Pr inciples – Building Solida rity, Forging Commitment’ (2018) 59

Forced Migration Review 4 –5; Angela Cotroneo ‘Strengt hening Implementation

of the Guiding Pr inciples by Affected States’ (2018) 59 Forced Migration

Review 29 –31.

175 For details, see I DMC Global Report on Internal Displacement 2 020 op cit note 1.

176 This is tr ue of the fundamental pr inciple of non-refoulement enshrined in

the 1951 Refugee Convention, which is now considered pa rt of customary

international law.

© Juta and Company (Pty) Ltd

114 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

as enshrined in the aforementioned instruments, are respected and

protected.177 Refugees ca n therefore be regarded as a privileged category

when compared to IDPs, whose plight is equally, if not more, serious.

In countries such as Syria, Yemen, Somalia and A fghanistan, which are

largely affected by the phenomenon, a majority of people have been

displaced by armed conict s between various militias and government

forces, with no possibility of enjoying protection without international

assistance.178 Providing specic protection for these people would put

them on almost the same footing as ref ugees in terms of international

legal protect ion.

If, as recommended in this contribution, the option of adopting

an international convention on internal displacement were to be

realised, the Kampala Convention would certainly serve as a model

for the development of such a convention. This can be even further

justied by the fact that, as noted above, the provisions of the Kampala

Convention are in harmony with pre-ex isting international law, at

least as far as the humanitar ian law provisions it sets out are concerned.

There would therefore be no need to worry about the risk of erosion

of already established legal regimes. The promotion of the Kampala

Convention as a basis for the development of a binding international

legal instrument on the issue of internal displacement should be

primarily the responsibil ity of African States and the Afr ican Union.

They should put in place an ‘export strategy’ to promote the rules set

out in this Convention in the framework of the negotiation of the

humanitarian law standards that will be included in the international

legal instrument for the protection of IDPs.179 In this regard, it is also

important to underline that AU member States have already requested

the AU Commission ‘to explore and conclude modalities for laying

the Convention before the UN General Assembly to be adopted as an

international legal instrument as A frica’s contribution to global efforts

to strengthen the legal regime for the protection and assistance of

ID Ps’.180 No information is available in the public arena on the steps

taken by the AU Commission to address this request. It is to be hoped

that relevant initiatives will be ta ken by AU ofcials in this regard

as soon as possible. This would be in line with t he African Union

Humanitarian Policy Framework, which states that ‘at global level, the

AU shall continue through its Missions and Member States to highlight

its humanitarian concerns in international fora, in particular the UN

177 For details, see U NHCR ‘The 1951 Refugee Convention’ available at ps://

www.unhcr.org/1951-refugee-convention.htm l> (accessed on 21 August 2021).

178 For details, see I DMC Global Report on Internal Displacement 202 0 op cit note 1.

See also Dieng op cit note 5 at 279.

179 See also Fomekong op cit note 57 at 181–183.

180 AU Common Afr ican Position (CAP) on Humanitarian Effective ness para 94.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 115

https://doi.org/10.47348/AYIH/2020/a4

General Assembly, Human Rights Council, ExCOM of U NHCR’.181

Furthermore, the adoption of an international convention on internal

displacement at the initiative of the AU would only contribute to

strengthening A frica’s inuence on the international scene, as provided

for in Agenda 2063.182

The Kampala Convention is also an important source for the

further development of specic customary rules for the protection

of IDPs.

4.2 The further development of customary rules

According to the ICRC’s Customary IHL Study, the four main general

customary rules that protect conict-induced IDPs are the prohibition

of forced displacement,183 the right of IDPs to humane treatment,184

the right of IDPs to return,185 and the obligation to respect the

property rights of IDPs.186 Although important, these rules are largely

insufcient to meet all the spec ic needs of IDPs. It is argued here that

the Kampala Convention can be the vehicle for the emergence and

development of new customary rules relating to the spec ic protection

of IDPs, whether reg ional custom187 or general custom.

Custom is dened as ‘evidence of a general practice accepted

as law’.188 Two specic elements are thus required to establish the

existence of a customary norm: State practice, which refers to the

conduct of States in the exercise of their executive, legislative, judicial

or other f unctions;189 and opinio juris, which means that the prac tice in

181 AU African Union Hu manitarian Policy Framework (2015) para 33.

182 AU A genda 2063: The Africa We Want aspiration 7 available at ps://www.

un.org/en/africa/osaa/p df/au/agenda2063.pdf > (accessed on 21 August 2021).

183 See ICRC Customar y IHL Study op cit note 28, Rule 129B.

184 Ibid Rule 13.

185 Ibid Rule 132.

186 Ibid Rule 133.

187 The existence of reg ional customs is widely recog nised in internationa l practice

and jurisprude nce. It has been attested to by the ICJ and other i nternational

courts. See Patr ick Diallier and Ala in Pellet Droit International Public 6 ed (1999)

326; Dominique Car reau and Fabrizio Marrella Droit Inte rnational 12 ed (2018)

320 and 322. See inter al ia Asylum Case (Colombia v Peru) [1950] ICJ Rep 266;

Fisheries Case (Unite d Kingdom v Norway) [1951] ICJ Rep 116 at 136–139 or Rights

of Nationals of the United States of Am erica in Morocco (France v United States of

Amer ica) [1952] ICJ Rep 176.

188 Statute of the Inte rnational Court of Justice, 26 Ju ne 1945, R.T. Can. 1945 No. 7 art

38(1) (b).

189 North Sea Contine ntal Shelf (Federal Republic of Germany v T he Netherlands) [1969]

ICJ Rep 3 para 74.

© Juta and Company (Pty) Ltd

116 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

question must be undertaken with a sense of legal r ight or obligation.190

Although these two elements must be established diffe rently, the same

act may reect both State practice and opinio juri s.191

At the African regional level, an i mportant practice in IDPs’

protection is gradually developing based on the Kampala Convention.

Three specic elements illustrate this argument. The rst element is

the status of ratication of the Kampala Convention. The Kampala

Convention has now been signed by 40 AU member States and

ratied by 32 of them.192 More than half of African states are thus

already legally bound by the provisions of the Kampala Convention.

States that have signed the Convention, but have not yet ratied it,

are still bound to respect the purpose and object of the Convention.

The African Union has now embarked on a process of multiplying

its efforts to promote the ratication of the treaties it has adopted,

including the Kampala Convention.193 Among measures underta ken

in that regard was the institutionalisation in January 2009 of the

AU Treaty Signing Week in December of each year dedicated to the

promote the ratication of AU treaties, and the adoption of decisions

inviting States to ratify these instruments as soon as possible.194 These

incentives should be continued and intensied in order to enable

the Kampala Convention to enjoy true ‘universal’ adherence. The

ratication of the Kampala Convention by all or almost all African

States would certainly contribute to the evolution of the provisions

stated therein into customary rules.195 In other words, it would have

the effect of generating custom.

Second, several States that have ratied the Kampala Convention

have already incorporated it into their national legislation and have

adopted legislative and other measures to ensure its implementation

190 See Internationa l Law Commission, Michael Wood (Spec ial Rapporteur)

Identication of Custo mary International Law A/CN.4/682, M arch 2015, para 14.

191 See North Sea Continental Shelf op cit note 189 para 77.

192 See AU ‘List of countr ies which have signed, ratied/acceded to t he

African Union C onvention for the Protection and Assist ance of Internally

Displaced Persons i n Africa (Kampal a Convention)’ (18 June 2020),

available at ps://au.int/sites/default/les/treaties/3684 6-sl-AFR ICAN%20

UNION%20CONVE NTION%20FOR%20THE%20PROTECT ION%20AND%20

ASSISTANCE%20OF%20INTERNALLY%20DISPLACED%20PERSONS%20

IN%20AFRICA%20%28K AMPALA%20CONVENTION%29.pdf> (accessed on

21 August 2021). Ethiopia is not yet included in the l ist, but it ratied the

Convention on 14 February 202 0.

193 For details in th at regard, see Fomekong op cit note 57 at 218–225.

194 See ibid for details.

195 See in this rega rd Eduardo Jiménez de Aré chaga ‘International Law in t he

Past Third of a Cent ury’ (1978) 159 Collected Courses of the Hague Academy of

International La w 1 at 18–22 which deals w ith the effects of treaties, inc luding

their ratication of c ustom.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 117

https://doi.org/10.47348/AYIH/2020/a4

at the national level.196 Legislative processes to lead to the adoption of

specic national legislation to implement the Kampala Convention are

also underway in some Afr ican countries.197 In order to assist States with

adopting national legislation in full compliance w ith the provisions

of the Kampala Convention, the AU has adopted the African Union

Model Law for the Implementation of the African Union Convention

for the Protection and Assistance of Internally Displaced Persons in

Africa. It is hoped that this w ill inuence the adoption of new national

legislation in line with the Kampala Convention.

Third, the Afr ican regional organisation has adopted numerous

resolutions on the issue of conict-induced displacement, which

underline the importance of the Kampala Convention and reafrm

the guarantees set out in the Convention.198 This important practice

that is being developed at the Africa n continental level will soon

contribute to the emergence of new customary rules relating to con ict-

induced displacement.

On the other hand, several elements are also g radually con-

solidating the opinio juris as to the fundamental legal character of the

196 At least eight countries have de veloped laws and policies (including d raft

laws and policies) leveraging t he Kampala Convention. They include A ngola,

Burundi, Kenya, L iberia, Malawi, Niger, South Suda n, Somalia and Zambia.

For details in that re gard, see AU Report of the Draft AU Model Law for the

Implementation of the Af rican Union Convention for the P rotection of and Assistance

to Internally Displaced Perso ns in Africa Report prepar ed by Minelik Alemu

Getahun (Ambas sador), AUCIL Special Rappor teur (27 November 2014) 37–40.

See also Romola Adeola ‘The I mpact of the Afr ican Union Convention on the

Protection and As sistance of Internally Displace d Persons in Africa’ (2019) 19:2

Afr Hum Rights Law J 5 91– 607.

197 This is the case, for e xample, in Mali and in Niger ia. For details, see Avant-projet

de la loi portant protect ion et l’assistance aux personnes déplacée s internes

au Mali, available at ps://www.humanitarianre sponse.info/sites/www.

humanitarianresponse.info/les/documents/les/mali_-_avant-projet_de_loi_

sur_la_protection_et_lassistance_des_pdis_-_revision_nale_-_30_aout_2019.

pdf protection- et-lassistance-des-pd is-revision> (accessed on 21 August 2021).

See also ICRC Translating the Kampala Conve ntion into Practice: A Stocktaking

Exercise (20 06) 35.

198 See inte r alia Declaration on the African U nion Theme of the Year 2019: ‘The Year

of Refugees, Retur nees and Internally Displaced Person s: Towards Durable Solutions

to Forced Displacement in Afr ica’, Assembly/AU/Decl.8(XXX II), 32nd Ordinary

Session of the Assembly, 10–11 February 2 019, Addis Ababa, Ethiopia; Décision

sur la note conceptuelle relat ive au thème de l’année: « réfugiés, rapatriés et per sonnes

déplacées internes : ve rs des solutions durables au déplaceme nt forcé en Afrique »,

EX.CL/Dec.1033 (XXX IV), Doc off CE UA, Doc. EX.CL/1112(XXXIV) (2019) 1;

Decision on the Humanit arian Situation in Afr ica, EX.CL/Dec.990(XX XII), Doc

off EX CL UA, Doc. EX.CL/1051(XXXII ) (2018) 1; Decision on the Humanitarian

Situation in Afr ica, EX.CL/Dec.968(XX XI), Doc. EX.CL/1018(XXXI) (2017);

Decision on Refugees, Ret urnees and Internally Displaced Persons in Af rica EX.CL/

Dec.899(XXV III)Rev.2, Doc. EX.CL/928(XXVI II) vi (2016).

© Juta and Company (Pty) Ltd

118 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

provisions of the Kampala Convention. Among these elements is the

rapid entry into force of the Kampala Convention. Adopted in 2009,

this Convention entered into force in 2012, ie three years after its

adoption. This is a short period of time compared to the time frame for

the entry into force of most legal instruments adopted by the AU,199 and

is indicative of the importance of the Kampala Convention. The speed

with which the Convention was ratied demonstrates the commitment

of many African States to the protection of the rights of IDPs. However,

the current scale of conict-induced displacement in Africa requires

strong political will and leadership, as well as signicant nancial,

technical and human investment, if the Convention’s ground-breaki ng

provisions are to be translated into concrete changes for IDPs.200

Furthermore, although the possibility of making reservations to

the provisions set out in the Kampala Convention is open, to date very

few reservations to this instr ument have been registered.201 Thi s may

be interpreted as evidence that the legal relevance of the provisions set

out therein is not in dispute.

Finally, many States have made declarations which tend to recognise

and underline the fundamental value of the Kampala Convention. For

example, on the occasion of the launch of the Africa n Union Theme of

the Year 2019: ‘The Year of Refugees, Returnees and Internally Displaced

Persons: Towards Durable Solutions to Forced Displacement in Africa’,

African Heads of State and Government solemnly declared that they

recognised the OAU Convention Governing the Specic Aspects of

Refugee Problems in Africa, as well as the Kampala Convention, as

‘key instruments for Member States to prevent displacement, respond

to the material and protection needs of the displaced populations and

nd solutions to humanitarian crises situations’.202 They also stressed–

the importance of preventive mea sures towards durable solutions

to forced displacement through ea rly warning, early response, e arly

recovery, disaster risk reduct ion measures, timely humanita rian

action, compliance with human rights and humanitarian law and

greater participat ion of the affected population, includi ng host

communities, paying pa rticular attention to women, children, young

people, people with disabil ities and the elderly.203

199 Apart from t he AU’s founding treaties, which entered into force quic kly, the

average time for most AU instru ments to enter into force is at least ve years.

For details in that re gard, see Fomekong op cit note 57 at 218–231.

200 See also Bilak op c it note 9 at 39.

201 This is the cas e of Sudan and Libya, who have expressed r eservations about

art 4(6). See Okello op cit note 6 at 370 for details.

202 See Declaration on the Afric an Union Theme of the Year 2019: ‘The Year of Refugees,

Returnees and In ternally Displaced Persons: Towards Durable Solutions to Forced

Displacem ent in Africa’ preamble.

203 Ibid para 13.

© Juta and Company (Pty) Ltd

REFLECTIONS ON HUMANITARIAN LAW 119

https://doi.org/10.47348/AYIH/2020/a4

These various elements attest to the fact that the provisions of the

Kampala Convention, including those relating to IHL , may soon

give rise to new customary norms. T he existence of customary rules

on the protection of IDPs would bring important benets for the

reinforcement of the protection of IDPs. In addition to strengthening

the legal regime for the protection of IDPs, they would be binding

on all subjects of international law who are relevant protagonists of

armed con ict, including States, international organisations204 and

armed groups that are not parties to this Convention. This position is

based on the following relevant argument developed by the ICJ on the

scope of customary law: ‘general or customary law … by their nature,

must have equal force for all members of the international community

and cannot therefore be the subject of any right of un ilateral exclusion

exercisable at will by any one of them in its own benet’.205 This

highlights the importance of strengthening the authority of the

Kampala Convention by ensuring its effec tive implementation.

5 CONCLUDING REMARKS

The objective of this contribution was to analyse t he humanitarian

law provisions of the Kampala Convention, not only to determine

their meaning and scope, but also to assess the extent to which they

contribute to the strengthening of the legal protection of conict-

induced IDPs. The above analysis shows that the humanitarian law

rules of the Kampala Convention are in harmony with the universal

rules of IHL and thus contribute to the preservation of the integrity

of IHL. They also contribute to the reafrmation and evolution of

the legal protection provided by the universal r ules of IHL for the

benet of IDPs. In particular, the analysis found that these regional

rules not only broaden the protective scope of equivalent rules that

exist at the universal level, but also establish new protections and

thus enable IHL to respond adequately to the challenges of protecting

conict-induced IDPs. On this basis, it has been suggested that these

rules should be promoted by the AU and its member States as part of

initiatives to strengthen the un iversal legal regime relating specically

204 On the participation of i nternational organisations i n armed conicts, se e

for example Robert Kolb Droit hu manitaire et opérations de paix inte rnationales:

les modalités d’application du droit inter national humanitaire dans les opé rations

de maintien ou de rétablisse ment de la paix auxquelles concour t une organisation

internationale (en pa rticulier les Nations Unies) 2 ed (20 06); Gian Luca Beruto

International Hu manitarian Law, Human Rights and Peace Ope rations 31st

Round Table on Current Problems in Inter national Humanitar ian Law,

San Remo (2008).

205 See North Sea Continental Shelf supra note 189 para 63.

© Juta and Company (Pty) Ltd

120 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a4

to the protection of IDPs. It was further a rgued that the rules set out in

this instrument could contribute to the emergence of new customary

rules that would contribute to the strengthening of the specic legal

regime for the protection of IDPs. It can therefore be concluded that

the rules established in the Ka mpala Convention to provide protection

to victims of forced displacement as a result of armed conict usefully

complement the universal rules of IHL and thus enable this body of

law to offer solutions commensurate with the humanitarian problems

raised by the need to protect and assist IDPs. Consequently, full

respect for and effective implementation of this legal framework

would certainly improve the plight of conict-induced IDPs. Indeed,

if this legal framework were fully respected and properly implemented

by all parties involved in armed conict, forced displacement would

be signicantly reduced. The humanitarian problems faced by people

affected by this phenomenon would also not arise. There is therefore

an urgent need to strengthen the implementation of this important

Convention. This implies, among other things, that Af rican States that

have not yet ratied the Kampala Convention take the necessary steps

to accede to it as soon as possible. States should also take the necessary

steps to incorporate the provisions of the Kampala Convention into

their national legislation. Similarly, as required by the Kampala

Convention, States should submit reports on a regular basis to the

African Commission on Human and Peoples’ Rights and the African

Peer Review Mechanism on measures undertaken to give effect to

the provisions of the Kampala Convention.206 This is fundamental

for the exchange of good practices in this regard, the identication

of challenges to the implementation of the Kampala Convention,

and the determination of solutions to overcome them. Finally, it is

important that the protections enshrined in the Kampala Convention

are promoted and disseminated as widely as possible across the A frican

continent. Familiarity with these protections could indeed foster

respect for them.

206 Kampala Convention ar t 14(4).

© Juta and Company (Pty) Ltd