Prevention of Displacement in Africa

African Journal of Legal Studies 6 (2013) 265–285 brill.com/ajls

From Durable Solutions to Holistic Solutions: Prevention of Displacement in Africa

Dan Kuwali* Centre for Conflict Studies, University of Cape Town, Cape Town, South Africa

Abstract The problem of internally displaced persons (IDPs) is prevalent in Africa due to conflicts, development projects, man-made as well as natural disasters that are commonplace on the continent. The Kampala Convention, which is an innovative tool, seeks to provide African States with a roadmap towards long- term solutions to prevent and eradicate the causes of displacement. As such, African States, humanitarian agencies, the African Union and other stakeholders should go beyond durable solutions, which are reactive, and pay more attention to proactive strategies to eradicate the factors that lead to displacement. To do this, there is need to adopt a holistic approach to address the question of IDPs on the continent through a three-tiered strategy that includes; firstly, short-term strategy to protect the IDPs by providing safety and security, freedom of movement as well as basic livelihood to the IDPs; secondly, medium- term strategy to restore IDPs’ dignity and ensure adequate living conditions through return, resettlement, (re)integration, reparation, restitution and rehabilitation; and thirdly, long-term strategy to eradicate root causes of displacement and fostering an environment conducive to respect of human rights, rule of law and good governance.

Keywords Africa; African Union; conflict prevention; durable solutions; holistic solutions; Internally displaced persons (IDP); Kampala Convention

1. Introduction The plight of people uprooted within their borders in Africa was brought into sharp focus following the recent crises in Goma in the eastern region of the Dem- ocratic Republic of Congo (DRC), Central African Republic (CAR) and Northern Mali.1 The dire situation of internally displaced persons (IDPs) who hide in remote areas, usually in conditions of poor sanitation and without access to basic services

*) E-mail: [email protected]. The author is a Senior Researcher, Centre for Conflict Studies, University of Cape Town, Post-Doctoral fellow, Centre for Human Rights, University of Pretoria; and Fellow, Centre for Human Rights Policy, Harvard Kennedy School of Government. 1) K. Patel, Internally Displaced People: An African Solution to a Huge African Problem, available online at http://www.dailymaverick.co.za/article/2012-12-06-internally-displaced-people-an-african-solution-to-a- huge-african-problem/#.UmanxFNoLnk (accessed 20 October 2013).

© Koninklijke Brill NV, Leiden, 2013 DownloadedDOI: from10.1163/17087384-123420 Brill.com09/25/2021 2802:04:43PM via free access 266 D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 is a source of instability and tension for African States.2 Apart from displacement caused by natural disasters and development projects, people displaced due to armed conflicts find themselves in situations where there is virtually no security, which facilitate widespread human rights violations that trigger massive displacement, including attacks on the population, ill-treatment, destruction of property, sexual violation and restricted access to health care and other essential services. Personal information and records of individuals may be destroyed when their communities are attacked or lost during their flight to safety, which has negative impact on data collection and statistics. Most IDPs, who include women, children and the vulnerable, have been killed and thousands forcibly displaced. Humanitarian workers have also been killed by armed men in conflicts.3 IDPs range from persons who are displaced in the major cities, farmers with rights to their own land; farmers who rented their land; agri- cultural workers and squatters and persons who owned small businesses.4 Most displaced children do not have access to education as school buildings are usually destroyed, closed or occupied by armed groups. In armed conflicts, displaced children are also particularly vulnerable to forced recruitment by armed groups, raped and forced to be ‘wives’ of warlords. The continent is home to about 10.4 million people displaced by conflict in sub- Saharan African countries, making up 40% of the world’s population of IDPs who have been displaced as a result of conflict.5 There are almost four times as many IDPs as there are refugees in Africa.6 The number is even higher when the 8.16 million people displaced by natural disasters in 2012 are ‑included.7 Unlike refugees, IDPs do not have a special status under international law. For this reason, the Afri- can Union (AU) adopted the Convention for the Protection and Assistance of the

2) See African Union, The African Union Convention for the Protection and Assistance of the Internally Dis- placed Persons in Africa (the Kampala Convention), available online at http://www.unhcr.org/4ae9bede9 .html (accessed 22 October 2013), Preambular para. 1. The Kampala Convention was adopted by the Afri- can Union (AU) and currently legally binds 15 African countries to prevent displacement, assist those who have been forced to leave their homes, and find safe and sustainable solutions to help people to rebuild their lives. A total of 37 African countries have demonstrated their commitment to the convention by signing it, but are not yet legally obliged by its contents. See also C. Beyani, Special Rapporteur on the Human Rights of Internally Displaced Persons by the Human Rights Council in September 2010, available online at http://www.ohchr.org/EN/Issues/IDPersons/Pages/IDPersonsIndex.aspx (accessed 19 October 2013). 3) United Nations Human Rights Council, UN Rights Expert Calls for the Urgent Protection of those Dis- placed by Current Crisis, available online at http://reliefweb.int/report/central- african-republic/un-rights- expert-calls-urgent-protection-those-displaced-current (accessed 20 October 2013). 4) As noted by the Representative of the Secretary-General for the Human Rights of IDPs in his mission report, following his visit to Kenya in May 2008. See K. Diagne and A. Solberg, Lessons Learned from UNHCR’S Emergency Operation for Internally Displaced Persons in Kenya (September 2008), available online at http://www.unhcr.org/48e5d90d2.pdf (accessed 7 October 2013). 5) Norwegian Refugee Council (NRC), Kampala Convention: Africa Takes the Lead! (6 December 2012), available online at http://www.nrc.no/?did=9666497 (accessed 10 October 2013). 6) As above. 7) See The African Union/Office for the Coordination of Humanitarian Affairs (OCHA), ‘Africa: Displace- ment by Natural Disaster in 2012’, 21 May 2013.

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Internally Displaced Persons in Africa (“the Kampala Convention”), which is the first of its kind in the world, as it holds States legally accountable for upholding the rights of IDPs.8 The Kampala Convention builds on international humanitarian law (IHL) and international human rights law (IHRL), as well as the United Nations (UN) Guiding Principles on Internal Displacement.9 Although significant strides have been made in terms of finding durable solutions for IDPs, this approach is reactive and does not address the factors that lead to displacement in the first place. It is for this reason that this discussion focuses on a ‘holistic approach’ to prevent and eliminate the root causes of internal displacement in Africa.10 The discussion draws inspiration from preambular paragraph 5 of the Kampala Convention, which sets out to prevent and eradicate the root causes of displacement and Article 2(1) of the Convention, which seeks to “promote and strengthen regional and national measures to prevent or mitigate, mitigate, prohibit and eliminate root causes of internal displacement as well as provide for durable solutions.” The discussion hinges on Article 3 of the Kampala Convention, which provides obligations for States to prevent displacement as well as protect and assist IDPs. To address the perennial problem of IDPs on the continent, the discussion proposes a three-pronged strategy that divides the holistic approach into short- term responsive measures that include safety, dignity, and basic rights of IDPs; medium-term remedial measures that include return, resettlement, (re)integration, and reinstitution; and long-term solutions to create a conducive environment by eradicating root causes of displacement, including prevention, protection and accountability measures.

2. Challenges to Prevention of Displacement and Protection and Assistance of IDPs in Africa The Kampala Convention defines IDPs as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”11 This definition, which mirrors the definition the UN Guiding Prin- ciples, has attempted to comprehensively address different causes of internal displacement, namely: conflict, generalised violence, man-made or natural disasters, and development projects such as mining projects, building dams or clearing land

8) Patel, note 1 above. 9) See United Nations, ‘Guiding Principles on Internal Displacement’, United Nations Economic Social Council Res. 1998/53, U.N. Doc. E/CN.4/1998/53/Add.1, 11 February 1998 (‘The Guiding Principles’). 10) The Kampala Convention, note 2 above. 11) The Kampala Convention, Article 1(k) as above.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access 268 D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 for large-scale agriculture.12 Apart from obstacles to preventing displacement, the challenges relating to protection and assistance of IDPs on the continent can be grouped into three, namely: individual challenges, operational challenges, and contextual challenges.

2.1. Individual Challenges As noticed in the recent massive internal displacement in Eastern DRC, IDPs are defenceless and prone to abuse including loss of life, property and livelihood.13 The most vulnerable IDPs include women and girls, who are often murdered, raped and sexually abused. In DRC, for example, rape is used as a weapon of war such that it is more dangerous to be a woman than a soldier in such situations. As noted in the Thomas Lubanga case, children are regularly taken and forced to become soldiers.14 Those who survive these violations are frequently displaced, taking refuge in camps where they are defenceless against armed attacks and harassment.15 Humanitarian relief workers and peacekeepers have been abducted and murdered by belligerents in conflict situations such as the Darfur region of Sudan. Peacekeepers, who are supposed to be protecting civilians, often find themselves in these precarious situations without capacity and capability to protect civilians, which sends a wrong signal to the perpetrators as well as to the populations they are supposed to protect. Such violations point to the fact that all what IDPs want is protection and respect for their human dignity and provision of basic services.16 While this definition of IDPs under the Kampala Convention is comprehensive, it is important to highlight that the violations of human rights in question should be viewed in broad-terms, not only focusing on grave violations that constitute war crimes, genocide and crimes against humanity but also the fundamental civil and political rights as well as the basic social and economic rights that are critical to existence of a person and enjoyment of the right of citizenship and residence. For example, the crisis in CAR has seen widespread and systematic destruction of

12) As above. 13) Ibid. 14) The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04–01/06. 15) Citizens for Global Solutions. Protecting Civilians in Armed Conflicts. Fact Sheet, available online at http://globalsolutions.org/files/public/documents/CP-Factsheet-Protecting-Civilians-in-Armed-Conflict .pdf (accessed 30 August 2013). 16) See also Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, [Geneva Convention IV], Article 27. See also United Nations (UN), International Covenant on Civil and Political Rights, UN Doc. G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 269 data and public registries, including birth certificates and court records. The lack of such records has a particularly negative impact on IDPs.17

2.2. Operational Challenges The politicisation and militarisation of humanitarian assistance is one of the most critical issues facing humanitarianism today. While the integrated mission concept of peace support operations is meant to offer effective protection for civilians in conflict situations, it converges humanitarian agendas with political, strategic, and military operations thereby endangering humanitarian space by compromis- ing the humanity, independence, impartiality and neutrality of humanitarian actors. The involvement of the military in humanitarian action in armed conflict situations, antagonises warring factions and magnifies security risks rather than the reverse. What follows is that the absence of security in places of little strategic interest to powerful States means that humanitarian agencies cannot deliver relief to those IDPs who are in most need. Politicisation and militarisation of aid is an increasing problem with negative effects on access, protection and safety as well as undermines efficiency. The more aid is perceived as politicised, the less effective it is. When aid supports military force, it is no longer considered as humanitarian. Aid workers are endangered when they are perceived as an exten- sion of donor countries’ foreign policy. Their neutrality is compromised when aid is contingent on political decisions, when funding is restricted, and when access to crisis-affected regions is not secure. Humanitarian work becomes politicised when politics, not need, determines the purpose, extent and type of the humanitarian response, that is to say, to win “hearts and minds” in pursuit of military, security and political goals. The militarization of aid is the result of a more open politicisation of aid, where support of donor countries is no longer inspired by solidarity and notions of shared humanity but rather by competition, access to and control over natural resources and geopolitical trade considerations. In that spectrum, it is survival of the fittest that is at stake. Politicization and militarization of humanitarian assistance in contemporary conflicts and emergencies, has led to exclusion and marginalisation of those IDPs in most need of assistance. The net effect of politicization and militarization of aid has been to undermine, rather than protect and assist, IDPs. Article 5(8) of the Kampala Convention requires States to “uphold and ensure respect for the humanitarian principles of humanity, neutrality, impartiality and independence of humanitarian actor”. In the same vein, Article 6(3) of the Convention dictates that international organizations and humanitarian agencies

17) United Nations, Urgent Protection Needed for Displaced Persons in Central African Republic – UN Expert, available online at http://www.un.org/apps/news/story.asp?NewsID=45960&Cr=central+african+republi c&Cr1=#.UmanD1NoLnk (accessed 20 October 2013).

Downloaded from Brill.com09/25/2021 02:04:43PM via free access 270 D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 should be “bound by the principles of humanity, neutrality, impartiality and independence of humanitarian actors, and ensure respect for relevant international standards and codes of conduct.” Therefore, to inoculate the humanitarian space, there should be division of labour where the military is restricted to protection of IDPs in armed conflicts and not delivery of humanitarian assistance unless it is in natural disasters.

2.3. Contextual Challenges According to the definition of IDP under the Kampala Convention, the reasons for displacement include conflict, violence, man-made or natural disasters, or development projects.18 Despite being protected under international human rights law and international humanitarian law, IDPs who fall under the category of civilians under IHL, continue to be the main casualties of violence, often deliberately tar- geted rather than merely caught up in the midst of the fighting in contemporary armed conflicts. Although the primary responsibility to protect populations rests with States, sometimes, it is those responsible for the protection of IDPs who undermine their security. For example, in the DRC, the most potent threat to the security and human rights of the IDPs has been reported to be the Congolese Army itself.19 Another example is in Libya where Colonel Muammar Gaddafi ordered his troops to massacre his own people when the rebelled against his autocratic rule in 2011.20 Apart from violations from government troops, the perpetrators of atroci- ties are insurgents, who are often criminals and do not respect the laws regulating the conduct of hostilities.21 At the same time, climate change has caused weather and environmental disasters, leading to a decline in crop yield, livestock, wildlife fisheries and freshwater supplies, the loss of forests and wetlands. Several thousands of people have been displaced as a result of natural disasters emanating from the adverse effects of climate change. Developing countries, most of whom are in Africa, bear the brunt of climate change impact since they have a lower adaptation capacity to climate

18) Kampala Convention, Article 2, note 2. 19) D. Kuwali, ‘Defending the Defenceless: Questions of Mandate and Capability to Protect Civilians in the Democratic Republic of Congo’, in P. Bonard, B. Docherty, G. Gaggioli, D. Kuwali. S. Syed and F. Tibbitts (eds), Improving the Protection of Civilians in Situations of Armed Conflict, Carr Center Working Paper Series (Carr Center, Cambridge, MA, 2011), pp. 17–20, at 17. 20) See United Nations Human Rights Council, Report of the International Commission of Inquiry to inves- tigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, UN Doc. A/ HRC/17/44, I June 2011. 21) D. Kuwali, Defending the Defenceless: A Quest for the Adequate Protection of Civilians in Armed Conflicts in sub-Saharan Africa (Danish Institute for Human Rights, Copenhagen, 2002), available online at www .humanrights.dk/files/.../hr/doc/defending_the_defenceless.doc (accessed 30 August 2013); D. Kuwali, Use of Force and Human Rights − Some Thoughts and Insights, Danish Institute for Human Rights Research Part- nership No. 2 (Danish Institute for Human Rights, Copenhagen, 2002), available online at www.humanrights.dk/files/.../hr/.../the_use_of_force_and_human_rights.doc (accessed 30 August 2013).

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 271 change than industrialized countries. Therefore, to the best way of protecting IDPs, is to eradicate or mitigate the factors that lead to their displacement in the first place.

3. The Kampala Convention: An African Solution to an African Problem The Kampala Convention, which was adopted on 23 October 2009 in Kampala, Uganda and came into force on 6th December 2012, is a continental instrument that binds African States to provide legal protection for the rights and well-being of IDPs. The Convention is progressive development as it closes potential gaps in the protection and assistance of IDPs. Although the 1998 Guiding Principles on Internal Displacement have been widely supported by the international community, they do not constitute a binding legal instrument.22 Therefore, being a binding treaty, the Kampala Convention “represents a critical new tool for tack- ling some of the largest and most complex IDP situations in the world”.23 Accord- ing to Orina, “[a]s a legal document potentially binding all African countries – a quarter of the world’s States – the treaty represents a significant step forward” in the protection and assistance of IDPs and prevention of causes of displacement on the continent.24 If the obstacles to the implementation of the Kampala Con- vention can be overcome, the Convention presents prospects of addressing the problem of IDPs on the continent.25 However, the Kampala Convention should not be seen as a stand-alone legal instruments but rather a complimentary mech- anism to the international human rights and humanitarian treaties, which provide protection of populations in such circumstances.26 It should be noted that IDPs legally remain under the protection of their own government – even though that government might be the cause of their flight. As citizens, they retain all of their rights and protection under both human rights and international humanitarian law.27 Some of the key provisions in the Kampala Convention are highlighted below.

22) See also International Committee of the Red Cross, Internationally Displaced Persons and International Humanitarian Law (Advisory Service on International Humanitarian Law, Geneva, 2010). 23) M. Bradley and M. Asplet, Strengthened Protection for Internally Displaced Persons in Africa: The Kampala Convention Comes Into Force, available online at http://www.‑brookings.edu/research/articles/2012/12/06- africa-kampala-bradley (accessed 20 October 2013). 24) B.M. Orina, Head of the International Committee of the Red Cross’ delegation to the African Union quoted in Patel, note 1 above. 25) Patel, note 1 above. 26) See The Kampala Convention, Preambular paragraph 8, note 2 above. 27) United Nations High Commissioner for Refugees, On the Run in Their Own Land, available online at http://www.unhcr.org/pages/49c3646c146.html (accessed 29 October 2013).

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3.1. The Primary Responsibility of National Governments to Protect and Assist IDPs The Kampala Convention stresses that primary responsibility for protecting and assisting IDPs rests with the state parties.28 The Convention also obliges governments to assess the needs and vulnerabilities of the forcibly displaced, and the host communities, in order to address the plight of IDPs. However, the Conven- tion also recognises the critical role played by civil society organisations and the communities which take them in assisting IDPs.

3.2. Accountability of Non-State Actors and Multinational Corporations Article 3(1)(h) obliges States to ensure that non-state actiors, including multinational corporations and private military or security corporations are held accountable for acts of arbitrary displacement. Article 3(1)(i) of the Convention requires that non-state actors be held accountable when “the exploration or exploitation of economic natural resources” leads to displacement. This provision goes beyond the traditional and state-focused international human rights law by recognising the central role that non-state actors play in many contemporary internal displacement crises.29 Non-state actors have also been directly involved in causing internal displacement in conflicts such as Eastern DRC, Mali, Nigeria, Sudan and Northern Uganda. At the same time, a wide range of actors may coordinate and collaborate with national authorities in responding to internal displacement, including host communities, non-governmental organizations (NGOs), and United Nations (UN) agencies. Therefore, the Convention also addresses not only the obligations and accountability of States Parties, but also of a range of other actors including the AU, humanitarian agencies, multinational corporations, private military or security corporations and non-state armed groups.30

3.3. Prohibition of Arbitrary Displacement The Convention demands increased responsibility for acts of arbitrary displacement. Article 3(1)(h) of the Convention demands that States ensure the accountability of IDPs “for acts of arbitrary displacement or complicity in such acts.” The prohibition of arbitrary displacement complements the Fourth Geneva Conven- tion, which prohibits “individual or mass forcible transfers” and categorises it as a grave breach.31 The Rome Statute of the International Criminal Court (ICC) also stipulates forcible transfers of population as an act that fall into the category of

28) Kampala Convention, Article 5(1), note 2 above. 29) Bradley and Asplet, note 24 above. 30) As above. 31) Geneva Convention (IV), note 16 above, Article 49. This also extends to non-international armed conflicts, Article 85(4); see also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Article 17, June 8, 1977, 1125 U.N.T.S. 609.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 273 crimes against humanity.32 However, in outlining the right to protection from arbitrary displacement, Article 4(d) and (e) of the Kampala Convention goes beyond the Guiding Principles by providing for displacement “caused by generalized violence or violations of human rights” and displacement “as a result of harmful practices”.33

3.4. Expansive Approach to Remedies The question of remedies is particularly important in order to restore the dignity and livelihood of IDPs.34 Yet, the issue of remedies for IDPs has generally focused on the loss of housing, land, and property (“HLP”) as the central harm associated with displacement. As such, restitution of property has been held as the preferred form of redress for IDPs.35 However, the Kampala Convention has adopted a broader focus beyond the restitution of housing, land, and property rights, and provides “a more pragmatic, contextually appropriate approach to remedying loss.”36 In this case, Article 12 of the Convention requires that States should “provide persons affected by displacement with effective remedies,”37 including “just and fair compensation and other forms of reparations”, in accordance with international standards.38 The Kampala Convention’s expansive approach to remedies for displacement may also strengthen efforts to ensure accountability for internal displacement. The remedies which IDPs may seek are not limited to housing, land and property losses but also include physical, mental, and other types of harms. In addition, a purposive interpretation of Article 12(1) of the Convention provides a wider catchment area of IDPs who can claim redress as long as they are affected by the

32) Rome Statute of the International Criminal Court, Article 7(1)(d), July 17, 1998, 2187 U.N.T.S. 90, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm. (accessed 26 October 2013). The Stat- ute of the International Criminal Tribunal for Yugoslavia also prohibited ‘unlawful transfers,’ See Statute of the International Criminal Tribunal for the Former Yugoslavia art. 2(g), available online at http://www .icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf. (accessed 23 October 2013). 33) Harmful Practices’ means all behaviour, attitudes and/or practices which negatively affect the fundamental rights of persons, such as but not limited to their right to life, health, dignity, education, mental and physical integrity and education, Article 1(j) Kampala Convention. the Guiding Principles, note 8 above; see also International Conference on the Great Lakes Region, Protocol to the Pact on Security, Stability and Development in the Great Lakes Region the on the Protection and Assistance to Internally Displaced Persons (Nov. 30, 2006), Principle 6. See also Protocol to the African Charter on Human and Peo- ples’ Rights on the Rights of Women in Africa (11 July 2003), available online at http://www.africa-union .org/root/au/Documents/Treaties/Text/Protocol%20on%20the%20Rights%20of%20Women.pdf (accessed 23 October 2013); Patel, note 1 above. 34) Bradley and Asplet, note 24 above. 35) Guiding Principles, note 9 above, Principle 29; see also United Nations, ‘Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005) (‘Pinheiro Principles’), available online at http://2001-2009.state.gov/documents/organization/ 99774.pdf (accessed 19 October 2013). 36) Bradley and Asplet, note 24 above. 37) Kampala Convention, Article 12(1), note 24 above. 38) As above.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access 274 D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 displacement. Apart from the IDPs, this may arguably include members of the community hosting the returning IDPs. Article 12(3) of the Convention further dictates that a State Party shall be liable to make reparation to IDPs for damage when such a State Party refrains from protecting and assisting IDPs in the event of natural disasters. However, the question remains whether, and to what extent, these remedies are accessible to claimants in practice.39

3.5. Humanitarian Principles of Humanity, Neutrality, Impartiality and Independence Article 5(8) of the Kampala Convention requires States Parties to “uphold and ensure respect for the humanitarian principles of humanity, neutrality, impartiality and independence of humanitarian actors.” Aside from States, Article 6(3) of the Convention also stipulates that international organizations and humanitarian agencies “shall be bound by the principles of humanity, neutrality, impartiality and independence of humanitarian actors, and ensure respect for relevant international standards and codes of conduct.” These humanitarian principles provide an ethical framework that defines and delineates the humanitarian space within which relief agencies are supposed to operate.40 Current experiences, however, show that these traditional principles were not designed to cope with the development underlying the increasing merging of humanitarian aid and politics. To avoid political manipulation, there have been calls for humanitarian to rethink these traditional principles and face the responsibility of getting more involved in the broader political arena to be able to take appropriate action, and to avoid long-term damages on a society.41 For example, neutrality has been referred to as a myth as it is rarely the reality when humanitarian groups engage on the ground. The reason being that when international assistance is provided in the context of armed conflicts, it becomes a part of that context and thus also of the conflict. Critics have argued that it is naïve to cling to abstract concepts of neutrality when the simple presence of a humanitarian organization in a war zone makes it partisan to the conflict. The principle of impartiality has also continued to be a casualty of donor politics of humanitarian needs. Today, impartiality of humanitarian response has been sub- ordinated to political calculations of the donor states. Donors may have legiti- mate foreign policy concerns. However, in the context of IDPs, the core purpose of humanitarian action is, and should be, to protect and assist the uprooted societies. Therefore, when donor States and agencies try to shape humanitarian assistance

39) Bradley and Asplet, note 24 above. 40) G. McHugh and M. Bessler, Humanitarian Negotiations with Armed Groups. A Manual for Practitioners (United Nations, New York, NY, 2006), p. 25. 41) T. Volberg, The politicization of humanitarian aid and its effect on the principles of humanity, impartiality and neutrality, European Master’s Degree in International Humanitarian Assistance, Ruhr-University of Bochum, Bochum, Academic Year 2005/2006, p. 5.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 275 to achieve other objectives, this fly in the face of the humanitarian principles and runs against the grain of Article 5(8) and Article 6(3) of the Kampala Convention is likely to result in the loss of lives. The question, however, is how to enforce such humanitarian obligations.

4. From Durable Solutions to Holistic Solutions: Preventing Displacement in Africa The concept of durable solutions derives from the fact that the end of conflict or natural disaster does not automatically mean the end of the specific needs and human rights concerns of IDPs or that when they find safety from ongoing conflict or disaster their problems diminish. In these situations, IDPs usually face con- tinuing problems, requiring support until they achieve a durable solution to their displacement. In this sense, a durable solution is achieved when IDPs “no longer have any specific assistance and protection needs that are linked to their displacement and can enjoy their human rights without discrimination on account of their displacement.”42 A durable solution can be achieved through sustainable reintegration at the place of origin, i.e., return, sustainable local integration in areas where IDPs take refuge (local integration); and sustainable integration in another part of the country (settlement elsewhere in the country).43 Looking at the ratio- nale of durable solutions, it is clear that they are only part of the journal and not the destination. The target should be to prevent the situations of displacement. To this end, the Kampala Convention goes beyond durable solutions and provides African States with a roadmap towards long-term sustainable solutions for the challenges of IDPs.44 According to its preamble, one of the reasons for the adoption of the Kampala Convention is to adopt measures aimed at preventing and putting an end to the phenomenon of internal displacement by eradicating the root causes, especially persistent and recurrent conflicts as well as addressing displacement caused by natural disasters, which have a devastating impact on human life, peace, stability, security, and development. Therefore, aside from establishing a legal framework for the protection and assistance of IDPs, eradicating the root causes of displacement is one of the fundamental pillars of the Kam- pala Convention.45 However, approaches to address the question of IDPs have focused more on provision of durable solutions and less on prevention of situations that lead to displacement. Prevention of displacement is worthwhile than reacting after the

42) The Brookings Institution, IASC Framework on Durable Solutions for Internally Displaced Persons (Brookings Institution, Washington, DC, 2010), p. 5. 43) As above. 44) Patel, note 1 above. 45) See Preambular paras 4 and 5 of the Kampala Convention, note 2 above.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access 276 D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 fact. It is for this reason that this discussion focuses on a holistic approach to address the question of IDPs on the continent by recommending a three-tiered strategy that includes protection activities to prevent or halt specific pattern of abuse and alleviate its immediate effects (responsive action); restore IDPs’ dignity and ensure adequate living conditions through return, resettlement, (re)integration, reparation, restitution and rehabilitation (remedial action); eradicating root causes of displacement and fostering an environment conducive to respect for the rights of IDPs in accordance with the relevant bodies of law (creating conducive environment).46

4.1. Short-term Strategy: Ensuring Voluntariness and Establishing Conditions of Safety and Dignity Article 2 of the African Charter on Human and Peoples’ Rights (Banjul Charter) dictates that every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the Charter. It also guarantees the right of the individual to the respect of the dignity inherent in a human being and to the recognition of his legal status and prohibits all forms of exploitation and degradation of human beings.47 The Banjul Charter also guarantees the right to property and provides that it may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. Involuntary displacement from one’s place of residence renders IDPs particularly vulnerable to the violations of their fundamental human rights due to lack of safety and security and deprivation of their livelihood. Therefore, with respect to IDPs, a key step in respecting their fundamental rights is providing them physical, legal, and material safety, respect for their dignity and their basic rights to adequate food, shelter, health, education, water, and livelihoods.48 To this end, States, non-state actors and the AU should provide protection and assistance to IDPs by meeting their basic needs as well as allowing and facilitating rapid and unimpeded access by humanitarian organizations and personnel.49

4.2. Medium-term Strategy: Return, Resettlement, (Re)integration, Restitution, and Rehabilitation Return is where IDPs go back to one’s place of ‘habitual residence’ or permanent aboard. Although return may be the preferred durable solution, it is often difficult to achieve. Resettlement is where IDPs start a new life in any place other than the

46) As above. 47) African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/ LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 5. 48) See United Nations High Commissioner for Refugees (UNHCR), Handbook for Repatriation and Rein- tegration Activities, May 2004. 49) Kampala Convention, Articles 3(j), Articles 4, 6, 7, 8, 9 and 10, note 2 above.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 277 place of original residence, but still within the same country. Depending on the circumstances of displacement and root causes of conflict, resettlement may be the only reasonable option for some internally displaced. (Re-)integration relates to the (re-)entry of former IDPs into the social, economic, cultural and political fabric of their original community or the new community where they have resettled. Re-integration or integration is the process that makes either return or resettlement sustainable or durable. In both reintegration and integration, long- term assistance and protection may be needed by returning or resettling IDPs. The guiding principle in programming during the return or resettlement process is the need for IDPs to make voluntary decisions, which is informed by two ele- ments, namely: freedom of choice and an informed decision.50

4.3. Long-term Strategy: Implementation of, and Adherence to, Obligations of Article 3 of the Kampala Convention Article 2 (a) of the Kampala Convention seeks to promote and strengthen measures to prevent or mitigate, prohibit, and eliminate root causes of internal displacement as well as make provision for durable solutions. The obligations that the Kampala Convention has set out to achieve this can be divided into three, namely: preventive measures, protection measures and accountability measures. Firstly, the preventive measures require States to refrain from, prohibit and prevent arbitrary displacement of populations; and to prevent political, social, cultural and economic exclusion and marginalisation that are likely to cause displacement of populations or persons by virtue of their social identity, religion or political opinion.51 An oversight in Article 3 is the obligation to mitigate the adverse effects of climate change which are attributable to several natural disasters in recent times. Given the centrality of multinational corporations in displacement due development projects, Article 10 of the Convention requires the conduct of socio-environmental environmental assessment and feasibility studies to curtail displacement before embarking on development projects. Secondly, protection measures require States and non-State actors to respect and ensure respect for the principles of humanity and human dignity of IDPs; to respect and ensure respect and protection of the human rights of IDPs, including humane treatment, non-discrimination, equality and equal protection of law; to respect and ensure respect for IHL regarding the protection of IDPs; and to respect and ensure respect for the humanitarian and civilian character of the protection of and assistance to IDPs, including ensuring that such persons do not engage in subversive activities.52

50) See generally Norwegian Refugee Council, Internal Displacement Monitoring Centre (IDMC), available online at http://www.nrc.no/?did=94295819 (accessed 26 October 2013). 51) Kampala Convention, Article 3(a) and (b), note 2 above. 52) Kampala Convention, Article 3(c), (d), (e) and (f ), as above.

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Thirdly, accountability measures include ensuring individual responsibility for acts of arbitrary displacement, in accordance with applicable domestic and international criminal law; ensure the accountability of non-State actors concerned, including multinational companies and private military or security companies, for acts of arbitrary displacement or complicity in such acts; and ensure the accountability of non-State actors involved in the exploration and exploitation of economic and natural resources leading to displacement.53

5. Towards a Holistic Approach to Eradicate Causes of Displacement in Africa To achieve this, State Parties should incorporate their obligations under the Kam- pala Convention into domestic law by enacting or amending relevant legislation as well as adopting measures for the protection of, and assistance to, IDPs at national and local levels. States Parties are also required to establish institutions responsible for coordinating activities aimed at, and cooperating with international organisations dealing with, protection and assistance to IDPs. States should provide the necessary funds for programmes relating to protection of, and assistance to, IDPs. The Kampala Convention also requires that the relevant principles of the Conven- tion should be incorporated into peace negotiations and agreements for the purpose of finding sustainable solutions to the problem of internal displacement.54

5.1. Addressing the Root Causes Conflicts in Africa Armed conflicts continue to pose serious threats to the life, security, and property of people and the survival of the post-colonial African State.55 Armed conflicts in the form of civil wars are now far more common than inter-state wars, particularly in Africa. Although interstate violence has declined; most of the contemporary armed conflicts in Africa and elsewhere are internal conflicts such as civil wars, separatist tensions, and terrorism, taking place within national boundaries.56 Not only has Africa fared worst than any other continent in terms of armed conflict occurrences, the extremity of weathers with the devastating consequences of drought, for instance, has often propelled Africa’s largely agrarian and peasant populations towards bloody tussles for pastoral and grazing lands as witnessed in the cyclical conflict in the Darfur region of Sudan.57

53) Kampala Convention, Article 3(h) and (i), as above. 54) Kampala Convention, Article 2, note 12 above. 55) See also P. Hough, Understanding Global Security (Routledge, London, 2004), pp. 154–155. 56) See P. Collier and A. Hoeffler, ‘Greed and Grievance in Civil War’, World Bank Working Paper Series 2000–18 (World Bank, Washington, DC, 2000), p. 2. 57) See J. Ghani and L. Iyer, ‘Conflict and Development: Lessons from South Asia’, 31 Economic Premise (2010), p. 1. See also N. Sambanis, ‘What Is Civil War? – Conceptual and Empirical Complexities of an Operational Definition’, 48 Journal of Conflict Resolution (2004), 814–858.

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Conflicts in Africa have also been sparked by the problems of inequality amongst various African peoples, the ancient and self-destructive ethnic and tribal con- tests for dominance, the incidence of mercenary-fuelled armed‑conflicts at the heist of foreign interest in African natural resources, including the criminal cor- ruption and kleptomaniac plundering of African vaults by some political leaders. Therefore, to prevent displacement, what is needed is what is needed is to address the root causes of conflict on the continent. To achieve this, Africa States must prevent political, social, cultural and economic exclusion and marginalization as well as economic stagnation and lawlessness that are likely to trigger conflicts that cause displacement of populations.58 Conflicts in Africa, especially in countries such as Angola, the DRC, and Sierra Leone, have been fuelled by illegal dealings of conflict commodities.59 To reduce the occurrence of armed conflicts, there is need to ensure proper use and management of the resources in countries, especially those that are prone to conflict.60

5.2. Controlling the Proliferation of Small Arms and Combating Illicit Trade in Africa Uncontrolled spread of small arms and light weapons (SALW) due to their easy accessibility and easy to use, has exacerbated the armed conflicts and triggered massive displacement on the African continent. Weapons are either sold to warring factions or bartered to warlords in exchange for natural resources. For example, in the war in the Darfur region of Sudan, for example, the floodgate of cheap Avtomat Kalashnikova 47 (AK-47) rifles into Darfur has driven fighters to cherish their rifles that “the Kalash brings cash” and “without a Kalash you’re trash.”61 Also, the bulk of the arms and “their ammunition – perhaps 95% – come from outside Africa.”62 Therefore, one way of solving the problem of displacement in Africa is to regulate and control small arms and light weapons as well as ammunition.63 In this direction, States should be encouraged to accede or ratify the UN Arms Trade

58) Kampala Convention, Article 3(b), note 2 above. See also African Union, 50th Anniversary Solemn Declaration on Peace and Security, available online at http://au.int/en/sites/default/files/50%20 DECLARATION%20EN.pdf (accessed 28 October 2013), p. 5. 59) Collier and oeffler, note 62 above, p. 2. 60) As above. 61) National Geographic, available online at http://ngm.nationalgeographic.com/2008/04/sahel/paul- salopek-text/3 (accessed 11 March 2013). 62) Oxfam, ‘Africa’s Missing Billions International Arms Flows and the Cost of Conflict’, available on line at: http://www.oxfam.org/sites/www.oxfam.org/files/africas%20missing%20bils.pdf (accessed 20 January 2013). 63) As a starting point, the ECOWAS Moratorium on the Import, Export and Manufacture of Light Weap- ons in West Africa provides a model to this effect. Another reference tool is the SADC Declaration con- cerning Firearms, Ammunition and Other Related Materials. An additional catalyst is the Memorandum on CSSDCA which urges the AU to take ‑appropriate measures for the effective implementation of the Bamako Declaration on an African Common Position on the illicit Proliferation, Circulation and Traffick- ing of Small Arms and Light Weapons and the UN Programme of Action to prevent, combat and eradicate

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Treaty (ATT).64 Nigeria is the only African country that has ratified the ATT so far.65 There is also evidence that the illicit trafficking of ivory is fuelling conflict in Africa. For example, The illicit ivory trade funds up to 40 per cent of the cost of the al-Shabaab’s militant group of 5,000 people, which has terrorized countries like Somalia, Kenya and Uganda in the Horn of Africa sparking massive displacement in the process.66 This explains the importance of integrated approaches of the IDPs agenda into the broader peace, security, and development agenda on the continent.

5.3. Enhancing the Respect for Human Rights and Humanitarian Law in Africa The principle of protection of civilians and non-combatants lies at the core of the Geneva Conventions of 1949 and the Additional Protocols of 1977, and indeed is fundamental to all IHL. While the protection of civilians is a State responsibility, often it is the government itself that perpetrates abuses. However, governments are not the only violators, noting that many abuses occur in rebel-held territory to which the government has no access. Abuses persist despite international laws that direct the conduct of parties to the conflict, thereby indicating that the mere existence of laws does not guarantee their adherence.67 The responsibility for ensuring civilian protection should be respected by both State and non-State actors. Under the Geneva Conventions, any State has the jurisdiction to try perpetrators of war crimes, irrespective of where the crime was committed and whether the State exercising jurisdiction was a party to the armed conflict in which it occurred. All States Parties to the Geneva Conventions have a duty to search for perpetrators of war crimes and bring them to justice.68 Further, jurisdiction over the illicit trade in small arms and light weapons (SALW) in all its aspects. See also United Nations, The World Summit Outcome, UN Doc. A/60/L.1 (15 September 2005), paras 92–96. 64) The Arms Trade Treaty establishes common international standards for the regulation of the international trade in conventional arms, ammunition and parts and components for the purpose of contributing to peace and security, reducing human suffering, and promoting cooperation and transparency. United Nations, Arms Trade Treaty, Final United Nations Conference on the Arms Trade Treaty. New York, 18–28 March 2013, UN Doc. A/CONF.217/2013/L.3, available online at http://disarmament.un.org/treaties/t/att/ text (accessed 28 October 2013). 65) United Nations Office for Disarmament Affairs, Nigeria: Ratification of Arms Trade Treaty, available online at http://disarmament.un.org/treaties/t/att (accessed 28 October 2013). 66) C. Stewart, ‘Illegal ivory trade funds al-Shabaab’s terrorist attacks’, The Independent (6 October 2013), available online at: http://www.independent.co.uk/news/world/africa/illegal-ivory-trade-funds-alsha- baabs-terrorist-attacks-8861315.html (accessed 12 October 2013). 67) C. Greenwood, ‘The Law of War (International Humanitarian Law), in Malcolm D. Evans (ed.), Inter- national Law (Oxford University Press, Oxford, 2003), pp. 798–823, at p. 817. 68) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31 [‘Geneva Convention I’]; Geneva Convention for the Amelioration of the Condi- tion of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85 [‘Geneva Con- vention II’]; Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135 [‘Geneva Convention III’]; Geneva Convention IV, note 16 above.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 281 other types of war crimes is by customary international law and it is also universal in that any State may exercise jurisdiction.69 Therefore, universal jurisdiction is a useful tool that is available for the States to ensure compliance with IHL and bring the perpetrators to justice regardless of where the offence was committed. Article 3(c) requires States to respect and ensure respect for international humanitarian law regarding the protection of IDPs. States are also required to ensure individual responsibility for acts of arbitrary displacement. In this vein, in particular, Article 7 of the Kampala Convention explicitly states that individual members of armed groups shall be held criminally responsible for their acts which violate the rights of IDPs under international law and national law.There is need to emphasise on reporting and monitoring compliance with IHL and human rights by non-State armed groups. In addition, the AU needs to encourage the ratification and implementation of the ICC Statute by AU States and promote effective operation of the ICC and other internationalised penal institutions. In principle, the prospect that one may be prosecuted anywhere on the continent (or even in the world) in respect of a violation of IHL or for mass atrocity crimes should act as a serious deterrent to potential perpetrators.70 It should be noted that implementation through permanent, preventive and corrective scrutiny in the field is more appropriate than a posteriori penalisation of violations.71

5.4. Ensuring Corporate Social Responsibility for Multinational Corporations Development projects on the continent have also been responsible for displacement of populations. For example, oil exploitation has occasioned damage to the Niger Delta since the mid-20th century. Regular oil spills and constant gas-flaring have affected the ecosystem and destroyed the livelihoods, lifestyles and violated the rights of the Ogoni people in Nigeria and caused massive displacement the Delta, naturally impelling the resistance from the inhabitants. In the seminal case of SERAC and another v. Nigeria (SERAC case) regarding the alleged violation by Nigeria of development-related rights in the restive region of the Niger Delta is instructive.72 The complaint alleged that the military government of Nigeria had been directly involved in irresponsible oil development practices in the Ogoni region. The Nigerian National Petroleum Company, the State oil company, formed a joint venture with Shell Petroleum Development Corporation whose activities

69) Greenwood, note 73 above, p. 817. 70) As above, p. 821. 71) M. Sassòli, ‘Possible Legal Mechanisms to Improve Compliance by Armed Groups with International Humanitarian Law and International Human Rights Law’, Centre of International Relations Liu Institute for Global Issues University of British Columbia Vancouver, 14–15 November 2003, pp. 15–17. 72) Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic, and Social Rights & Another v Nigeria (2001), 15th Annual Activity Report: 2000–2002. See also S.I. Skogly, ‘Complexities in Human rights Protection: Actors and Rights Involved in the Ogoni confict in Nigeria’, 15 Netherlands Quarterly of Human Rights (1997), 47–60.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access 282 D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 in the Ogoni region allegedly caused environmental degradation and health problems among the Ogoni people, resulting from the contamination of the environment. The complaint denounced the widespread contamination of soil, water and air; the destruction of homes; the burning of crops and killing of farm animals; and the climate of terror the Ogoni communities had been suffering in violation of their rights to health, a healthy environment, housing and food.73 The African Commission of Human and Peoples’ Rights found violations of several provision of the Banjul Charter and appealed to the new civil government in Nigeria to protect fully the environment, health and livelihood of the people in Ogoniland. The Commission requested the government to stop the attacks on Ogoni communities, conduct an investigation into the human rights violations and prosecute officials of the security forces and officials of the Nigerian National Petroleum Company. The Commission also demanded that the government should make adequate compensation to the victims, including relief and resettlement assistance, and undertake a clean-up of land and rivers polluted and damaged by the activities of the oil operations; and to take measures to ensure that appropriate environmental and social impact assessments are undertaken in case of future oil development activities. The Commission also stated that the population should be properly informed about possible health and environmental risks. The decision of the African Commission is in line with Article 10 of the Kampala Convention, which requires States Parties to ensure that the stakeholders concerned explore feasible alternatives, with full information and consulta- tion of persons likely to be displaced by projects. States parties are also required to carry out a socio-economic and environmental impact assessment of a proposed development project prior to undertaking such a project. Due to their primary responsibility to protect IDPs, States should ensure that multinational corporations take seriously their social responsibility and human rights obligations within their sphere of influence.

5.5. Building Resilience and Capacity of Countries to Adapt Prevent and Respond to Crises and Disasters Aside Asia, Africa is bearing the brunt of displacement due to climate- and weather-related disasters with a record high 8.16 million people displaced in 2012, over four times more than in any of the previous four years.74 The poorest people within populations and other vulnerable groups are often at greater risk of displacement and face heightened protection risks once displaced. States, the AU

73) See also F. Coomans, ‘The Ogoni Case before the African Commission on Human and Peoples’ Rights’, available online at http://www.righttoenvironment.org/ip/uploads/downloads/OgoniCaseProf.Coomans .pdf (accessed 29 October 2013). 74) Internal Displacement Monitoring Centre, ‘Global Estimates 2012: People Displaced by Disasters’, available online at http://www.internal-displacement.org/natural-disasters (accessed 29 October 2013).

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 283 and other stakeholders should ensure that vulnerable communities are prepared to respond and able to find sustainable solutions as they recover from such life changing events. There is need to increase African countries’ resilience to disasters and to develop responses contingency plans to implement timely and effective responses to extreme weather events in Africa. Article 4(2) of the Kampala Convention requires States to “devise early warning systems, in the context of the continental early warning system, in areas of potential displacement, establish and implement disaster risk reduction strategies, emergency and disaster preparedness and management measures and, where necessary, provide immediate protection and assistance to internally displaced persons.” The international community should assist African States to build local, national, regional, and sub-regional capacities to pre-empt and respond to humanitarian crises and disasters as well as to adapt to climate change, including initiatives to strengthen national and local governance, support sustainable livelihoods and improve access to basic services.75

5.6. Provision of, and Access to, Sustainable Solutions Signing or ratification of the Convention on paper is one thing and implementing it is another thing altogether. Although the Kampala Convention provides an impressive array of remedies, challenges remain to ensure that the solutions proposed by the Convention are actually made available to the IDPs. The effective implementation of the Kampala Convention is undoubtedly the greatest challenge faced by the States Parties. This explains why there should be deliberate efforts for the awareness of the Convention, signing, accession as well as institutionalization of the principles set out in the Convention.

5.7. Strategic Advocacy for Ratification of the Kampala Convention and National Enforcement Despite the progress made by the adoption of the Kampala Convention in Africa, the treaty has only been signed by 39 out of the 54 African States and ratified by a mere 19.76 It is disheartening to note that some of the countries whose citizens are in most need of the Convention are yet sign or ratify it. The increased protection provided to IDPs under the Kampala Convention hinges on national enforcement, which requires domestication of implementing legislation and strong support for the institutions charged with enacting these commitments. Therefore, there is need for strategic advocacy to encourage encourage more African governments,

75) Norwegian Refugee Council, ‘14.9 Million Uprooted by Natural Disasters’, available online at http:// www.nrc.no/?did=9656553 (accessed 29 October 2013). 76) African Union, List of Countries which have signed, ratified/acceded to the Convention for the Protec- tion and Assistance of Internally Displaced Persons in Africa’, available online at http://www.au.int/en/ treaties (accessed 29 October 2013). This is the status as of 28 October 2013.

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6. Conclusion The gravity of the problem of IDPs has been brought to the fore by recent crisis, which have highlighted the need for the urgent protection of civilians uprooted by the internecine crises on the continent. The causes of ‑displacement are multifari- ous, ranging from armed conflicts, generalized violence, natural as well as man- made catastrophes and development projects. The durable solutions approach, although comprehensive, for IDPs is largely reactive and does not focus on eradicating the root causes of displacement.77 To this end, the Kampala Convention is a historic milestone not only to protect and assist IDPs but also to eradicate causes of displacement on the continent. As such, aside from establishing a legal framework for the protection and assistance of IDPs, the Kampala Convention provides preventive measures for addressing the root causes of displacement on the continent. In contrast to the current silos and reactive approach, African governments, the AU, among other humanitarian stakeholders, should adopt a holistic approach to effectively address the question of IDPs on the continent. In doing this, it is necessary to divide the prevention, protection, and assistance activities into: firstly, short-term strategies that include responsive action to protect the human dignity by providing safety, security and freedom of movement, among others, to IDPs and ensure adequate living conditions through provision of basic rights; secondly, medium-term strategies that include remedial action such as return, resettlement, (re)integration, reparation or restitution and rehabilitation; and thirdly, long term strategies that aim at creating a conducive environmental to eradicate the root causes of situations that trigger displacement and foster a culture of respect for the rights of individuals.78 However, the Kampala Convention has focused much on eradicating the causes of armed conflicts and man-made disasters. Curtailing conflicts that have occasioned displacement on the continent demands that African States must addresses the social misery, political exclusion, economic stagnation, lawlessness which have led to explosive armed conflicts on the continent and build an integrated and people-centred Africa, based on peace and shared prosperity. African States should also ensure transparency in the control and exploitation of resources “so citizens can see exactly where and how taxes, aid and revenues from extrac-

77) See Preambular paragraphs 4 and 5 of the Kampala Convention, note 2 above. 78) As above.

Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 285 tive industries are spent.”79 African States should also ratify and domesticate the Arms Trade Treaty to regulate the proliferation of small arms, light weapons and ammunition which have exacerbated the armed conflicts that have driven people from their homes in Africa. Both States and non-state armed groups should ensure respect for human rights and humanitarian law in armed conflicts and those who are responsible for violations should be held individually accountable to promote deterrence. As held by the African Commission in the SERAC case and highlighted in Arti- cle 10 of the Kampala Convention, both government and private actors should prevent displacement caused by development projects, respect the rights of the inhabitants and carry out socio-economic and environmental impact assessment of a proposed development projects prior to undertaking such projects. Where the rights of the inhabitants have been violated, adequate compensation should be provided. Given the prevalence of natural disasters due to adverse effects of climate change, attention should also be paid to mitigating the effects of climate change on the continent by building resilience and capacity of countries to adapt prevent and respond to crises and disasters. The Kampala Convention provides a powerful tool to resolve the problem of IDPs on the continent. For this reason, governments that have not signed, acceded or ratified the Convention should be encouraged to do so in order to ensure that this “landmark legal achievement is translated into landmark gains for IDPs in practice.”80 The efficacy of the Convention requires a greater commitment by African States than its perfunctionary ratification by institutionalizing its principles in national legislation and policies so that the IDPs are protected in the short-term, able to access redress in the medium term, and in the long term, eradicate the factors that lead to displacement. This requires strategic advocacy in a continent-wide campaign to persuade States to embrace the letter and spirit of the Convention.81

79) United Nations, A New Global Partnership: Eradicate Poverty and Transform Economies Through Sus- tainable Development, Report of the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda, New York, 30 May 2013, 80) Bradley and Asplet, note 24 above. 81) Patel, note 1 above.

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