Article 22 in Lieu of A Travaux Préparatoires Kampala IDP Convention.

International Journal of Refugee Law, 2019, Vol 31, No 2/3, 349–378
doi:10.1093/ijrl/eez037
Downloaded from https://academic.oup.com/ijrl/article/31/2-3/349/5686251 by Ethiopian Civil Service University user on 07 March 2022
In Lieu of a Travaux Préparatoires:
A Commentary on the Kampala
Convention for IDPs
JO Moses Okello*
A B ST R A CT
The Kampala Convention was adopted on 23 October 2009 and came into force on 4
January 2013. The first binding international instrument for the protection and assistance
of internally displaced persons, it occupies an important space among the body of African
regional humanitarian and human rights law. The Convention addresses all stages of in-
ternal displacement and provides a framework for coordinating activities by governments
and humanitarian actors aimed at preventing and addressing internal displacement. The
Kampala Convention is the result of many years of work, although no formal records of
its drafting and negotiation were kept. This article contributes towards addressing this
gap. Based on the author’s personal involvement in the Convention’s drafting, and sup-
plementing earlier research, this article shares information previously unavailable in the
public domain and provides a commentary on some of the Convention’s provisions.
1. I N T RO D U CT I O N
In October 2009, the African Union (AU) held a Special Summit of Heads of
State and Government in Kampala, Uganda, during which it adopted the AU
Convention for the Protection and Assistance of Internally Displaced Persons in
Africa (Kampala Convention).1 The Kampala Convention was greeted as an ‘historic
* A career diplomat, lawyer, and former senior official of the United Nations, the author partici-
pated in the drafting of the Kampala Convention and was Senior Coordinator for the African
Union Special Summit that adopted it. He expresses his sincere thanks to the anonymous re-
viewers for their helpful comments, and to Tamara Wood for her assistance in preparing the
manuscript for publication.
1
African Union Convention for the Protection and Assistance of Internally Displaced Persons in
Africa (adopted 23 October 2009, entered into force 6 December 2012) 49 ILM 86. (While 6
December 2012 is commonly cited as the date for the treaty’s entry into force, technically it en-
tered into force on 4 January 2013: see part 3.2.1 below.) The Special Summit also adopted the
Kampala Declaration and Recommendations, AU doc Ext/Assembly/AU/PA/Draft/Decl. (I)
Rev.1. See also André-Michel Essoungou, ‘Africa’s Displaced People: Out of the Shadows’ (April
© The Author(s) (2019). Published by Oxford University Press. All rights reserved.
For Permissions please email: [email protected]
• 349
350 • A Commentary on the Kampala Convention for IDPs
agreement’2 – the first binding international law instrument to address protection and
assistance for internally displaced persons (IDPs). The Kampala Convention builds
upon and reinforces the non-binding United Nations (UN) Guiding Principles on
Internal Displacement (Guiding Principles),3 as well as other regional human rights in-
struments in Africa.4 Despite the significance of the Kampala Convention, no detailed
records were kept of its drafting. On this, Abebe observes:
No minutes of preparatory draft meetings were taken ... Only reports were pre-
pared. These reports unfortunately have glaring shortcomings. Other than
summarising a general subject of agreement or disagreement among participants,
they often do not provide information on specific proposals or amendments
agreed upon. These regrettable shortcomings would have been rectified if the AU
had kept minutes of official meetings.5
This article aims to address this gap, by tracing the origins and development of the
Kampala Convention and sharing information about the drafting process previously
unavailable in the public domain. It is structured in two main parts. Part 2 outlines
the path to the adoption of the Kampala Convention. It explains the impetus for an
African regional instrument on internal displacement and the key events that led to
the Convention’s negotiation and adoption. Part 3 turns to the provisions of the
Convention itself. It provides a brief background to each provision, identifies key con-
cerns raised by States during the Convention’s drafting, and describes how differing
positions were resolved in the final text. It also offers some general comments on the
scope of some of the Convention’s provisions. Unless otherwise stated, the information
2010) Africa Renewal 6 <https://www.un.org/africarenewal/magazine/april-2010/africa’s-

displaced-people-out-shadows> accessed 5 February 2017.
2
Melissa Fleming and Yusuf Hassan, ‘AU Special Summit Opening Speech by President Yoweri
Museveni’, Media Briefing (Kampala, 23 October 2009) <https://www.unhcr.org/en-au/news/
latest/2009/10/4ae1e09d9/african-union-adopts-major-convention-protect-assist-internally-
displaced.html> accessed 5 February 2017.
3
UN Commission on Human Rights (UNCHR), Report of the Representative of the Secretary-
General, Mr Francis M Deng, submitted pursuant to Commission Resolution 1997/39, Addendum:
Guiding Principles on Internal Displacement, UN doc E/CN.4/1998/53/Add.2 (11 February
1998). See also Kim Lewis, ‘Kampala Convention Is First of Its Kind for Displaced People’ (VOA
News, 6 December 2012) <https://www.voanews.com/a/kampala-convention-treaty-idmc-
unhcr-idps/1559696.html> accessed 5 February 2017.
4
Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee
Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS
45; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21
October 1986) 21 ILM 58.
5
Allehone Mulugeta Abebe, ‘African Union Convention on Internally Displaced Persons: Its
Codification Background, Scope, and Enforcement Challenges’ (2010) 29 Refugee Survey
Quarterly 28. This lack of record keeping also characterized the work of the AU’s predecessor,
the OAU. See generally Ivor Jackson, The Refugee Concept in Group Situations (Martinus Nijhoff
Publishers 1999) 191.
A Commentary on the Kampala Convention for IDPs • 351
provided in this article is based on the author’s recollections and notes taken during the
drafting process.
2. T H E PAT H TO T H E K A M PA L A CO N V E N T I O N
2.1 The early work
2.1.1 Impetus for an African Convention on IDPs

At the international level, the development of an international normative framework
for the protection of IDPs began in the 1990s, when the then Representative of the
UN Secretary-General on the Human Rights of IDPs, Professor Francis Deng, was
asked by the UN Commission on Human Rights (UNCHR) to examine the extent
to which existing international law provided coverage for IDPs.6 On the basis that ex-
isting laws were inadequate for the task,7 Deng and a group of international legal ex-
perts (including Robert Kogod Goldman, Walter Kälin, and Manfred Nowak)8 were
mandated by the UN General Assembly and UNCHR to set out a normative frame-
work for IDPs.9 The result was the UN Guiding Principles on IDPs – a non-binding,
‘soft law’ instrument that brought together existing principles of international human
rights, humanitarian, and criminal law relating to the prevention of internal displace-
ment, protection for those displaced, and conditions for safe return and other lasting
solutions. The Guiding Principles have proved highly influential and have provided
the foundation upon which other frameworks for the protection and assistance of
IDPs have been built.10
In Africa, the path to a regional framework for IDPs began, not with initiatives dir-
ected at IDPs specifically, but with initiatives intended for refugees. One such initiative
was a symposium held by the Organization of African Unity (OAU) and the United
Nations High Commissioner for Refugees (UNHCR) in Addis Ababa in September
6
UN General Assembly (UNGA) res 60/251 (15 March 2006). Francis Deng was the
Representative of the UN Secretary-General on the Human Rights of Internally Displaced
Persons from 1992 to 2004 (appointed pursuant to UNCHR res 1992/73, UN doc E/
CN.4/RES/1992/73 (5 March 1992)). Also see Walter Kälin, Guiding Principles on Internal
Displacement: Annotations (revised edn, American Society of International Law and Brookings–
Bern Project on Internal Displacement 2008) (Annotations) xii, 38.
7
See UNCHR, Note by the Secretary-General: Comprehensive Study Prepared by Mr Francis M
Deng, Representative of the Secretary-General on the Human Rights Issues related to Internally
Displaced Persons, pursuant to Commission on Human Rights Resolution 1992/73, UN doc E/
CN.4/1993/35 (21 January 1993) Annex; UNCHR, Report of the Representative of the Secretary-
General, Mr Francis M Deng, Representative of the Secretary-General on the Human Rights Issues
related to Internally Displaced Persons: Compilation and Analysis of Legal Norms, submitted pursuant
to Commission on Human Rights Resolution 1995/573 of March 1995, UN doc E/CN.4/1996/52/
Add.2 (5 December 1995); UN doc E/CN.4/1998/53/Add.1 (11 February 1998).
8
Annotations (n 6) xi, 38.
9
UNCHR res 1992/73, UN doc E/CN.4/RES/1992/73 (5 March 1992).
10
See Annotations (n 6) ix. Also see UN General Assembly, ‘2005 World Summit Outcome’, UN
doc A/RES/60/1 (24 October 2005) para 132.
1994.11 The symposium was convened to commemorate the 25th anniversary of the
1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
(OAU Convention).12 However, it also resulted in the adoption of a number of im-
portant conclusions and recommendations relating to IDPs.13 A second refugee-related
initiative in Africa – known as Partnership in Action (PARinAC) and held in February
1994 – also included consideration of the unsatisfactory situation facing IDPs in
Africa14 and adopted similar recommendations.15
Africa’s path towards regional protection for IDPs did not always sit easily with
what was taking place at the international level. In December 1998, at a minis-
terial conference on refugees held by the OAU in Khartoum, Sudan,16 a number
of States’ representatives challenged the legitimacy of Professor Deng’s work17 and
resisted an attempt to acknowledge the UN Guiding Principles in the Ministerial
Declaration.18 Led by Sudan, they argued that the Guiding Principles had been the
work of the UN Secretariat19 and had included insufficient involvement by States.20
Exercising considerable influence in Africa at that time, Nigeria persuaded these
States to acknowledge the UN Guiding Principles and to have them submitted to
the OAU Commission on Refugees for onward transmission to the OAU Council
of Ministers.21
This acknowledgment of the Guiding Principles marked an historic moment for the
Principles in Africa, even though they had earlier been endorsed by African States in
other fora.22 Later, following their adoption by the OAU Council of Ministers,23 Africa
overwhelmingly endorsed the Principles at an OAU Meeting of Experts in Conakry,
11
OAU/UNHCR, Symposium on Refugees and Forced Population Displacements in Africa:
AU doc A/AC.96/839 (8–10 September 1994) (Addis Ababa Document). See also
‘Recommendations of the OAU/UNHCR Symposium on Refugees and Forced Population
Displacements in Africa’, UN doc EC/1994/SCP/CRP.7/Add.1 (21 September 1994).
12
OAU Convention (n 4).
13
See n 11.
14
See JO Moses Okello, ‘Internally Displaced Persons: An African Perspective’ (OAU/UNHCR
PARinAC Conference, Addis Ababa, February 1994).
15
UNHCR, ‘Report on PARinAC’, UN doc EC/1995/SC.2/CRP.20 (2 June 1995).
16
AU, ‘Report of Experts Meeting on Refugees, Returnees and Displaced Persons in Africa
(Khartoum Conference, 10–13 December 1998)’, AU doc BR/COM/EXP/RPT (1) (10–13
December 1998); Agenda Item 3, para 22: JOM Okello, ‘Consideration of the Report on Refugee
Protection Principles and Concerns in Africa’ (Khartoum Conference, 10–13 December 1998),
AU doc BR/COM/65/46.98 (10–13 December 1998).
17
See nn 3, 7.
18
AU doc CM/2105 (LXX) (13 December 1998). See also AU doc AU/EXP/HARDP/2(1) (13
December 1998).
19
See nn 6, 8.
20
Author’s notes.
21
‘Decision on the Situation of Refugees, Returnees and Displaced Persons in Africa’, AU doc
CM/2105 (LXX) (10 July 1999).
22
For example, when the Guiding Principles were adopted by UNCHR in 1998.
23
See n 21.
Guinea, and States were encouraged to apply them.24 At this same meeting, African
States consolidated their approach to the protection of both IDPs and refugees by
adopting a Comprehensive Action Plan (CAP) to guide States’ responses to both
groups.25 Subsequently, sub-regional initiatives, such as the Great Lakes Protocol on
IDPs, were undertaken.26
2.1.2 The Ouagadougou initiative

The process towards an Africa-specific regional instrument for the protection of IDPs
began in 2004. Concerned about the plight of IDPs in Africa and the absence of a spe-
cific legal instrument or assistance mechanism for their benefit, a group of six African
States27 tabled a proposal before the AU Sub-Committee on Refugees to amend the
1969 OAU Convention to also cover IDPs.28 The Sub-Committee on Refugees recom-
mended that a ministerial conference be convened to consider the matter further.29 This
recommendation was endorsed by the Permanent Representatives Committee and the
AU Executive Council.30
The ministerial conference met in June 2006 in Ouagadougou, Burkina Faso. When
the proposal to amend the OAU Convention was tabled, a counter-proposal to elaborate
a convention specific to IDPs was introduced.31 The reason for the counter-proposal
was that including IDPs in the OAU Convention risked significantly lowering the
standards of refugee protection in that instrument. The AU Commission and Member
States embraced the idea of a convention for IDPs, which was then formally tabled by
Malawi.32 The outcome document was the Ouagadougou Declaration,33 which recom-
mended the convening of a Special Summit to address the matter further and ‘allow the
24
Author’s notes. See also ‘Comprehensive Action Plan’, OAU doc CONFP/OAU30th/CORE/4-
Rev1 (29 March 2000); UNGA res 55/77 (4 December 2000).
25
ibid.
26
International Conference on the Great Lakes Region, Protocol on the Protection and Assistance
to Internally Displaced Persons (adopted 30 November 2006, entered into force 21 June
2008) <https://www.refworld.org/pdfid/52384fe44.pdf> accessed 31 December 2016.
27
Interview with Ambassadors John Ntankwana Zibane (Botswana) and Lazarus Kapambwe
(Zambia) (Addis Ababa, 2009). The States were Botswana, Zambia, Uganda, Sierra Leone,
Namibia, and Liberia.
28
The AU Sub-Committee on Refugees is the successor to the OAU Commission on Refugees. It
sits within the AU Permanent Representatives Committee (PRC).
29
AU Report of the PRC Sub-Committee on Refugees, AU doc EX.CL/175 (VII)-d (29 June
2005). See also AU doc EX.CL/177 (VII) (28 January 2005); AU doc EX.CL/Dec.127 (V) (3
July 2004).
30
ibid.
31
Interview with the UNHCR delegation to the Ouagadougou conference (Addis Ababa, 2008):
Ilunga Ngandu (leader), Befekadu Birhanu, and Albert Katumba.
32
ibid. Dr George Chaponda, Malawi’s Minister of Foreign Affairs at the time, tabled the proposal
and Patrick Tigere, then Head of the AU Commission’s Humanitarian Affairs Division, played a
key role in moving it forward.
33
Ouagadougou Declaration of the Ministerial Meeting on Refugees, Returnees and IDPs in
Africa, AU doc AU/MIN/HARDP/Decl.1 (2 June 2006).
opportunity for Member States to tackle the root causes with a view to eradicating this
phenomenon’.34
In July 2006, the AU Executive Council endorsed the idea of a Special Summit for
IDPs35 and instructed the AU Commission, in consultation with key partners, to initiate
preparations. Key partner organizations included members of the AU Coordinating
Committee on Assistance and Protection to Refugees, Returnees and Internally
Displaced Persons (CCAR),36 such as the International Organization for Migration
(IOM), the International Committee of the Red Cross (ICRC), and UNHCR.37 Many
of these organizations had a long tradition of cooperation with the AU.38 As noted by
Abebe, ‘the invitation of non-AU [organizations] to participate … was indeed notable’.39
The involvement of these organizations – in particular, the contribution by UNHCR of
financial support and senior staff to help coordinate the Special Summit40 – was also
critical to the Special Summit’s success.
2.1.3 Special Summit on IDPs

The organization of the Special Summit on IDPs was led by a Task Force established
by the AU Sub-Committee on Refugees. The Task Force comprised Angola, Benin,
Burkina Faso, Cameroon, Egypt, Gabon (chair), Saharawi Arab Democratic Republic,
Sudan, Uganda, Zambia, and CCAR members.41 As part of the groundwork for the
Special Summit, the Task Force commissioned conference papers on seven separate
topics relating to internal displacement42 and consulted with relevant non-governmental
34
ibid.
35
In Banjul, The Gambia. AU doc EX.CL/Dec.289 (IX) ( July 2006).
36
Currently the Coordinating Committee on Forced Displacement and Humanitarian Action
(CCoFDHA), AU Humanitarian Policy Framework (20 November 2015) <http://www.peaceau.
org/uploads/humanitarian-policy-framewrok-rev-final-version.pdf> accessed 29 December 2016.
37
In addition to the World Food Programme and African Humanitarian Action (AHA).
38
Cooperation Agreement between the OAU and ICRC (4 May 1992), (1992) 288 International
Review of the Red Cross 307; Cooperation Agreement between the Office of the High
Commissioner for Refugees and the Organization of African Unity (9 April 2001) 2152
UNTS 185.
39
Abebe (n 5) 34.
40
The author was the staff member assigned. Terms of reference and High Commissioner António
Guterres’ letter on file with the author.
41
Other AU partners, including the United Nations Children’s Fund (UNICEF), the UN Office
for the Coordination of Humanitarian Affairs (UNOCHA), the International Federation of Red
Cross and Red Crescent Societies (IFRC), and the Jesuit Refugee Service ( JRS), were also in-
vited to attend.
42
The topics were: ‘Rebuilding Communities Emerging from Conflict’ (to be prepared by IOM);
‘Addressing the Needs of Displaced Women and Children’ (to be prepared by UNICEF);
‘Partnership’ (to be prepared by AHA); ‘Prevention’ (to be prepared by ICRC); ‘Addressing the
Needs of People Displaced due to Natural Disasters’ (to be prepared by UNOCHA and IFRC);
‘Protection’ and ‘The Evolution and Current Situation of Forced Displacement’ (both to be pre-
pared by UNHCR). See also ‘Report of the Second Meeting of the Task Force for the AU Special
Summit’, AU doc POL/DIR/120/1150.
organizations (NGOs). Some of these NGOs prepared a joint statement supporting

the need for an IDP-specific instrument in Africa,43 although for financial reasons only
a few participated in the Summit itself.44
Initially scheduled for August 2008, and postponed several times, the Special
Summit finally took place on 22–23 October 2009.45 While the dates were being deter-
mined, no venue had been identified. Moreover, by March 2008, only two of the seven
papers commissioned by the Task Force were ready. To move the process forward, the
AU Commissioner established an informal Working Group to steer the process. The
Working Group comprised the AU Commission, UNHCR, and Uganda, which had
privately indicated that it would be willing to consider hosting the Summit.46 This move
strategically positioned Uganda and UNHCR within the AU Commission to drive the
process and significantly contribute to its outcome. Following the establishment of the
Working Group, and in light of the slow progress regarding the commissioned research,
the decision was taken to prepare a single, consolidated paper for the Special Summit.47
The preparation of this paper was assigned to the Senior Coordinator for the Summit.48
Contrary to the narrative given by other writers,49 this consolidated paper served
as the conference paper for the Special Summit. Initially titled ‘Forced Population
Displacement in Africa: A Challenge for the African Union’, the final paper was retitled
‘African Union: Addressing the Challenge of Forced Displacement in Africa’.50
At first, a two-track approach to the work on the Convention was established.
A group of ‘Legal Experts’ commenced drafting, while a group of ‘Technical Experts’
focused on the Summit preparation.51 This resulted in duplication of effort and was
costly and unnecessary. To combine the two processes, however, the AU Commission
needed financial support.52 This was provided by UNHCR, to ensure that this problem
did not derail the work on the Convention.53
43
NGO Joint Statement, ‘Internally Displaced Persons in Africa Need a Strong Convention’ (Addis
Ababa, 6 June 2008) <https://www.fidh.org/IMG/pdf/IDPconventionAUngoComments.pdf>
accessed 8 February 2017. See also AHA, ‘Report of the AU Consultative Meeting of Civic
Society’ (Addis Ababa, 4 November 2008).
44
AHA (n 43).
45
The author participated in the decisions on the postponements of the Summit (AU Commission,
30 May 2008) and advised the establishment of an informal Working Group.
46
Uganda’s acting Ambassador to the AU, Juliet Ssemambo Kalema, indicated this to the author
on 29 April 2008. Upon confirmation on 30 April 2008, the author suggested to Ambassador
Kalema that she write to the AU Commission to indicate that Uganda would host the Summit.
47
This decision was taken with AU Commissioner Julia Dolly Joiner on 30 May 2008.
48
The author held that role.
49
See Abebe (n 5) 32.
50
AU doc DOC.EX.CL/372 (XII).
51
Author’s notes.
52
The proposal to combine the two processes was made to Commissioner Joiner by the author in
early May 2008 in Addis Ababa.
53
Marjon Kamara (then Director of UNHCR’s Africa Bureau) and the author approached then UN
High Commissioner for Refugees, António Guterres, for support. Guterres was very keen that
the Convention project succeed and immediately initiated the UNHCR process for fundraising
to support the combined meeting and the Summit.
2.2 The Convention’s adoption
2.2.1 The Summit goes to Kampala

For symbolic reasons, a group of ambassadors to the AU had proposed to the AU Sub-
Committee on Refugees that the Special Summit be held in a country that had experi-
enced, and successfully resolved, population displacement.54 Namibia was approached,
but declined, citing financial reasons.55 Benin (which was seeking AU chairmanship at
the time)56 made an offer, but then also withdrew for the same reasons. In practice, AU
Member States hosting conferences meet part of the costs involved57 and this can be
extremely costly for some States. Suggestions to hold the Summit at AU headquarters,
or as a side event at the July 2008 Summit in Sherm-el-Cheikh, Egypt, or in Tripoli,
Libya, were rejected because of concerns that, as a side event, the Summit would be
overshadowed by the main one.58
The idea to hold the Special Summit in Kampala was conceived in a discussion be-
tween Ugandan AU Commission official, Ms Macrine Mayanja, and the author on
28 April 2008.59 At the February 2009 AU Summit in Addis Ababa, President Yoweri
Museveni confirmed Uganda’s willingness to host the Summit.60 On 20 March 2009,
a delegation from the AU Commission and UNHCR travelled to Uganda to discuss
the matter further,61 including with Uganda’s then Minister for Disaster Preparedness,
Refugees and IDPs, Professor Tarsis Kabwegere. It was at this meeting that the title of
‘Kampala Convention’ was proposed for the Convention.62 Professor Kabwegere rec-
ognized the importance of an African Convention on IDPs and saw merit in Uganda
hosting the Summit, and pursued the matter further with the President and his Cabinet
colleagues.63 Uganda was recovering from its own experience with IDPs, and it may
well be that this determined the country’s interest.64
54
Interview (n 27).
55
ibid.
56
Elizabeth Archibong, ‘Africa: Boni Yayi of Benin Becomes AU Chairman’ (30 January
2012) <https://allafrica.com/stories/201201301536.html> accessed 23 February 2017.
57
AU Handbook 2018 <https://au.int/sites/default/files/pages/31829-file-african_union_
handbook_2018_english-2.pdf> accessed 8 June 2018.
58
In Tripoli, the AU Commission was also concerned that the event could be hijacked by Colonel
Gadhafi.
59
Contrary to other accounts. See Abebe (n 5) 42.
60
Ambassador Patrick Mugoya, Uganda’s Deputy Permanent Representative to the UN in New
York at that time, facilitated the meeting with the President, who confirmed this to the au-
thor. Other meetings were also held with Hon Sam Kuteesa, Minister of Foreign Affairs, and
Ambassador James Mugume, then Permanent Secretary in the Ministry of Foreign Affairs.
61
The delegation comprised AU Commissioner Joiner, AU staff Macrine Mayanja and Rita
Amukhobu, Chrystantus Ache for UNHCR, and the author.
62
In the meeting with President Museveni, the President endorsed the author’s suggestion that the
Convention be called ‘the Kampala Convention’.
63
Professor Kabwegere confirmed to the author in March 2009, while recounting his personal
story as a former refugee, the importance of the Convention to Africa.
64
It is a curious coincidence, nonetheless, that Kampala became the venue for the Summit, as
it was also in Kampala that the idea of the modern system of protection for the displaced in
2.2.2 Preparation of the draft Convention

Unlike the UN Guiding Principles, the Kampala Convention did not benefit from a com-
prehensive prior study. Nevertheless, the Convention’s drafting benefited greatly from input
and advice from Professor Walter Kälin, one of the architects of the Guiding Principles
and the Representative of the UN Secretary-General on the Human Rights of IDPs, and
Professor Chaloka Beyani,65 a similarly renowned expert in international law (who was to
become the Special Rapporteur on the Human Rights of IDPs). Kälin and Beyani partici-
pated in the elaboration of the Convention’s text and served as ‘resource persons’ for those
involved, explaining and advising on legal issues and concepts where required.
In 2005, Professor Beyani, who had been retained by the AU Secretariat to assist with
the drafting of the Convention, presented a Concept Note on the Kampala Convention
to the Consultative Group,66 and shortly after followed it with the Annotated Outline
of a Draft Legal Framework for the Protection and Assistance of Internally Displaced
Persons in Africa (Annotated Outline). The Annotated Outline provided the first
draft of the Kampala Convention.67 It drew heavily on the UN Guiding Principles,68
giving the impression that it could effectively make the Guiding Principles ‘binding’ on
African States parties. The influence of the UN Guiding Principles was not limited to
the direct use of its text,69 but was also felt indirectly, through the expert advice given
by Professor Kälin.70 In addition to the Guiding Principles, the draft Convention also
benefited from broader principles of existing humanitarian and human rights law. As
Africa was first formulated in 1964 in a document known as the ‘Kampala Draft’. That docu-
ment later became the basis for the OAU Convention which partly inspired the elaboration of the
Kampala Convention. See Marina Sharpe, ‘Engaging with Refugee Protection? The Organization
of African Unity and the African Union since 1963’ (2011) New Issues in Refugee Research,
Working Paper No 226 <https://www.unhcr.org/4edf8e959.pdf> accessed 10 January 2017.
65
Then teaching at the London School of Economics. Beyani had assisted the International
Conference on the Great Lakes Region to draft a pact comprising 10 protocols, including one on
the Protection and Assistance to Internally Displaced Persons in 2006. See n 26.
66
The Task Force established by the AU Sub-Committee on Refugees to organize the Special
Summit on IDPs (see part 2.1.3 above) also served as the Consultative Group that later reviewed
the Annotated Outline of the Convention.
67
‘Annotated Outline of a Draft Legal Framework for the Protection and Assistance of Internally
Displaced Persons in Africa’, AU doc AU/EXP/HARDP/2(V-ii). The Annotated Outline re-
ferred to the draft document as a ‘Legal Framework’ rather than a ‘Convention’, presumably in
order not to prejudice the outcome of its consideration. However, the intention to develop a
Convention had already been determined in 2004 in the initial proposal to amend the OAU
Convention, as well as in subsequent ministerial decisions. See nn 29, 33.
68
For a comparative analysis between the Guiding Principles and the Annotated Outline, see
Abebe (n 5) 35, para 2.1.
69
Chaloka Beyani, ‘Implementation of the African Union Convention for the Protection
and Assistance of Internally Displaced Persons (IDPs), 2009 (The Kampala Convention)’,
Speech to ECOWAS Ministers (7 July 2011) <https://www.brookings.edu/on-the-record/
implementation-of-the-african-union-convention-for-the-protection-and-assistance-of-
internally-displaced-persons-idps-2009-the-kampala-convention/> accessed 1 January 2017.
70
Annotations (n 6).
Beyani emphasized at the time, ‘[a]ttempts at filling the lacunae of a legal instrument
for [IDPs] in Africa must draw on wider aspects of the efforts made so far’.71
The Annotated Outline was submitted to the Ministerial Conference on Refugees
and IDPs in June 2006, where it was adopted and returned to the Consultative Group
for further review.72 The Consultative Group agreed on a set of parameters for the
draft Convention, including that it should: be in keeping with international standards,
comprehensive with a broad definition of IDPs; address the responsibilities of States
and other actors; include a provision on compensation for displaced persons; create a
dedicated fund and regional office for IDPs; and endorse the application of interven-
tion provisions of the AU’s Constitutive Act in situations of serious displacement.73
Following this review, the Annotated Outline was submitted to the Meeting of Legal
Experts to elaborate the Convention’s text. This process involved a series of meetings
between 2007 and 2008.74 On 9 November 2008, the draft Convention was submitted
to the combined meeting of experts for finalization, and on 10–11 November 2008 to
the ministerial meeting for adoption.
All the meetings that took place during the drafting of the Kampala Convention
were conducted in a quasi-formal manner and much of the negotiation process took
place outside formal settings. Those who participated in these meetings were generally
sufficiently familiar with the topic, but many were not lawyers and some were Addis
Ababa-based diplomats who had to regularly seek advice from their capitals before
taking positions. Inaccurate translations from the original English language text into
the other AU official languages occurred often,75 necessitating further meetings to har-
monize the texts.
In addition, the interventions made by participants during the drafting process were
made orally and without any proper record of what was said. This deprived the meet-
ings of crucial records and, as a result, some topics had to be considered more than
once. The effect of all these factors was to slow down the drafting process, which was
becoming expensive, both for the AU, which had to meet additional conference costs,
and for the delegations, who had to stay longer in Addis Ababa.
3. T H E P ROV I S I O N S O F T H E CO N V E N T I O N
Negotiations on the Convention were difficult. There were deep divisions between
countries in Sub-Saharan Africa and those in North Africa, some of which took posi-
tions that suggested that they were not wholly committed to the Convention project.
71
Chaloka Beyani, ‘Recent Developments: The Elaboration of a Legal Framework for the Protection
of Internally Displaced Persons in Africa’ (2006) 50 Journal of African Law 187 <eprints.lse.
ac.uk/23000/1/Beyani_Recent-developments_2006.pdf> accessed 22 January 2017.
72
The review took place on 10–11 May 2007.
73
Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May
2001) 2158 UNTS 3.
74
The first series of meetings took place on 15–17 December 2007, the second on 2–6 June 2008,
and the third, which was the combined meeting of experts, on 9 November 2008.
75
The languages were Kiswahili, Arabic, French, Portuguese, and Spanish: AU Handbook
2014 <https://www.un.org/en/africa/osaa/pdf/au/au-handbook-2014.pdf> accessed 10
February 2017.
For instance, at one point, the representative from Sudan proposed the removal of all
references to the word ‘protection’ from the draft text.76 This has to be seen in con-
text, however, as Sudan was at that time preparing for the 2011 referendum on South
Sudan’s independence and had a large number of South Sudanese whom it did not re-
gard as IDPs.77 Thus, local issues influenced the positions of some States.
Beyani later observed of the drafting process:
[T]he Convention was widely and laboriously negotiated … [and the] process
conducted with a view to achieving consensus, common understanding, and
even agreement on the provisions … And where consensus was not reached,
the draft provisions were bracketed until accommodating language was reached.
Where consensus was not reached, the draft provisions were gradually removed
from the text.78
This part analyses each provision of the final text of the Kampala Convention. It sets
out the origins of each provision, outlines some of the key issues discussed during its
drafting, and provides the author’s view of the significance of the provision within the
context of the Convention as a whole. Except where otherwise noted, the information
below is based on the author’s notes taken during the drafting process.
3.1 Preamble to the Kampala Convention

For the most part, the preamble to the Kampala Convention is based on existing inter-
national law instruments and statements of fact.79 Nevertheless, its drafting generated
considerable debate.80
3.1.1 Paragraph 1
Paragraph 1 of the preamble expresses African States’ awareness of ‘the gravity of the
situation of internally displaced persons as a source of continuing instability and ten-
sion for African States’. Some States questioned the accuracy of this paragraph, arguing
that it was not the gravity of the situation of IDPs that created instability and tension.
Rather, such conditions existed independently of IDPs, the product of ‘root causes’
such as ‘faulty foundationing’ of States and ‘external interference’.81 Against this, it was
76
The author lobbied the Sudan delegation to drop that proposal.
77
Internal Displacement Monitoring Centre (IDMC), ‘Internally Displaced Persons: Sudan
Comprehensive Peace Agreement’ <https://peaceaccords.nd.edu/provision/internally-
displaced-persons-sudan-comprehensive-peace-agreement> accessed 10 February 2017.
78
Beyani (n 69).
79
Kampala Convention, preamble paras 1, 2, 13.
80
Beyani (n 69).
81
Democratic Republic of Congo (DRC) and Cote d’Ivoire led discussions on this point. Both
had large numbers of IDPs due to rebel activity that they believed was externally inspired:
notes on file with the author. See also Elizabeth J Rushing and Florence Foster, ‘Côte d’Ivoire:
New Commitments Signal Hope for 300,000 Still Internally Displaced’ (IDMC Overview, 26
February 2015).
argued that a stable State in international law was built on a stable population and that
displacement, therefore, affected State stability.82
Following this debate, the initial objections to paragraph 1 were dropped by those
States that had raised them. However, their interventions had revived a debate on the
notions of sovereignty and non-interference in internal affairs that was then taken up
more generally. Sudan and Libya, in particular, took strong positions, arguing that the
Kampala Convention was ‘an encrypted invitation for outsiders’ to concern themselves
with the internal affairs of African States.83 It is plausible that Sudan was concerned
about the international community’s criticism in regard to the situation of its IDPs –
Sudan was known to have a large number of IDPs originating from the disturbances in
Darfur and the civil war in what later became South Sudan, and the country was heavily
criticized for the alleged mistreatment of the IDPs.84 For Libya, it seemed that the
reason for taking a strong position was primarily to express solidarity with Sudan. Both
countries conceded their positions only when their attention was drawn to paragraph 7
of the preamble, which reaffirms ‘the principle of the respect of the sovereign equality
of States Parties, their territorial integrity and political independence’, and as the result
of an appeal from States that had only recently been affected by internal displacement.85
3.1.2 Paragraph 2
Paragraph 2 of the preamble recognizes the ‘suffering and specific vulnerability of in-
ternally displaced persons’. It was inserted to highlight the predicament faced by IDPs
and the long-term implications of their displacement, such as possible breakup of family
units or entire communities; forfeiture of homes and lands; and erosion or complete
loss of traditional livelihood coping mechanisms.86 This paragraph also underscores the
humanity of IDPs and their right to the enjoyment of all assurances enshrined in inter-
national human rights and humanitarian law.87
3.1.3 Paragraph 3
Paragraph 3 of the preamble reiterates ‘the inherent African custom and tradition of
hospitality by local host communities for persons in distress and support for such com-
munities’. This paragraph draws from a long history of references to African hospitality
by both the OAU and AU.88 References to African hospitality have appeared mainly in
82
Author’s notes. See also Beyani (n 69).
83
Author’s notes.
84
News Khartoum, Soudan (14 August 2014) <www.urban-refugees.org/Khartoum/> accessed
3 January 2017. See also Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary-General (25 January 2005) <https://www.un.org/ruleoflaw/blog/document/
report-of-the-international-commission-of-inquiry-on-darfur-to-the-united-nations-secretary-
general/> accessed 9 October 2019.
85
Liberia, Sierra Leone, Cote d’Ivoire, DRC.
86
Author’s notes. See also Erin Mooney, ‘The Concept of Internal Displacement and the Case for
Internally Displaced Persons as a Category of Concern’ (2005) 24 Refugee Survey Quarterly 9.
87
See ICRC, ‘ICRC Position on Internally Displaced Persons (May 2006)’ (3 July 2006) <https://www.
icrc.org/eng/assets/files/other/2006_idps_en_icrcexternalposition.pdf> accessed 3 January 2017.
88
Author’s notes. See also J Milner, Refugees, the State and the Politics of Asylum in Africa (Palgrave
Macmillan 2009).
relation to refugees,89 underpinned by the solidarity that existed among African States
during the fight against colonialism.90 More recently, however, the notion has been ex-
tended to African States’ treatment of IDPs – this time underpinned by the African
sense of community and patriotism.
Some commentators have questioned the continuing veracity of the ‘African custom
and tradition of hospitality’, suggesting that it is a myth,91 or that the historical gener-
osity of African States to refugees was the product of the specific context of the im-
mediate post-colonial period.92 Yet African States have continued to be hospitable to
refugees well after independence, suggesting that the practice is deeply rooted in the
African moral personality.
3.1.4 Paragraph 4
Paragraph 4 of the preamble expresses African States’ commitment ‘to sharing our
common vision of providing durable solutions to situations of internally displaced per-
sons by establishing an appropriate legal framework for their protection and assistance’.
This paragraph represents a clear change of attitude from the time of the Khartoum
ministerial conference, when many African States were on course to reject the Guiding
Principles.93 The phrase ‘durable solutions’ in this paragraph generated discussion
among some States, who understood the term as conveying the same meaning as in
the Ouagadougou Declaration94 – namely ‘to eliminate root causes and eradicate the
IDPs phenomenon’ – and as it is normally used in relation to refugees. However, while
durable solutions for refugees – namely repatriation/return, local integration, and re-
settlement95 – may seem equally applicable to IDPs, in reality the solutions for IDPs
are different. As Kälin explains, although durable solutions for IDPs are not provided
explicitly by international human rights law, such solutions are drawn from the rights to
freedom of movement and free choice of place of residence – for example, as provided
by article 12 of the International Covenant on Civil and Political Rights (ICCPR).96
89
Sharpe (n 64).
90
The notion first found expression in modern Africa in the 1950s with the onset of the liber-
ation struggles starting with the Algerian war against French rule. Alistair Horne, A Savage War
of Peace: Algeria 1954–1962 (New York Review Books 1977); Ali A Mazrui, Africa since 1935,
UNESCO, General History of Africa, vol VIII (Heinemann 1995).
91
W Gunther Plaut, Asylum: A Moral Dilemma (Praeger 1995).
92
Crisp, eg, argues that what appeared as African hospitality in the first 20 years following African
independence was actually the product of pan-Africanism and anti-colonial ideologies, the pres-
ence of international aid, and the relatively small size of refugee flows at that time. See Jeff Crisp,
‘Africa’s Refugees: Patterns, Problems and Policy Challenges’ (2000) New Issues in Refugee
Research, Working Paper No 28 <https://www.unhcr.org/en-au/research/working/3ae6a0c78/
africas-refugees-patterns-problems-policy-challenges-jeff-crisp.html> accessed 9 January 2017.
93
Author’s notes.
94
Ouagadougou Declaration (n 33).
95
Inter-Agency Standing Committee (IASC), Framework on Durable Solutions for Internally
Displaced Persons (Brookings–Bern Project on Internal Displacement 2010) <https://www.
brookings.edu/reports/2010/0305_internal_displacement.aspx> accessed 15 January 2017.
96
Annotations (n 6) 125. International Covenant on Civil and Political Rights (adopted 16
December 1966, entered into force 23 March 1976) 999 UNTS 171.
3.1.5 Paragraph 5
Paragraph 5 emphasizes prevention and the need to eradicate the ‘root causes’ of in-
ternal displacement. This paragraph was well received.
3.1.6 Paragraphs 6, 7, and 8
These paragraphs refer to a range of other international law instruments of relevance
to internal displacement. They include the constitutive Acts of the AU and the UN,
as well as numerous international and regional human rights instruments. Some of
these instruments are seldom observed, paralysed by reservations entered by States
or lack of political will.97 Nevertheless, their mention in the preamble to the Kampala
Convention was applauded by States and humanitarian agencies urging their imple-
mentation. In particular, reference to the AU Constitutive Act, the Protocol relating to
the Establishment of the Peace and Security Council of the African Union,98 and the
UN Charter,99 were commended by humanitarian agencies as important, as all include
specific references to IDPs. The references to the AU Constitutive Act in the preamble
and later in the operative provisions of the Convention100 were, however, a compromise,
inserted to replace a draft provision on intervention that had been rejected.101
3.1.7 Paragraph 9
Paragraph 9 of the preamble acknowledges the fact that ‘Member States of the
African Union have adopted democratic practices and adhere to the principles of
non-discrimination, equality and equal protection of the law under the 1981 African
Charter on Human and Peoples’ Rights, as well as under other regional and inter-
national human rights law instruments’.
African States represent a diverse range of political systems102 and each State has
its own interpretation of what constitutes democratic practices, making the ‘state of
democracy in Africa … a controversial and difficult question’.103 Nevertheless, some
States in Africa practise ‘democracy’ as it is generally understood.104 The mention of the
African Charter on Human and Peoples’ Rights and ‘other regional and international
human rights law instruments’ in this paragraph was seen by some States and humani-
tarian agencies as important since the Charter provides essential guides on the prin-
ciples regarding human and peoples’ rights and fundamental freedoms,105 although, as
alluded to above, it is yet to be fully implemented.
97
See comments relating to para 1 of the preamble (part 3.1.1 above).
98
Protocol relating to the Establishment of the Peace and Security Council of the African Union
(adopted 9 July 2002, entered into force 26 December 2003).
99
Charter of the United Nations (26 June 1945).
100
Kampala Convention, arts 4, 8, 9.
101
See draft AU Convention for the Protection and Assistance of Internally Displaced Persons in
Africa, AU doc POL/ HARD/114 (2 August 2007).
102
Nic Cheeseman, ‘The State of Democracy in Africa’ (Democracy in Africa, 14 August 2015)
<democracyinafrica.org/the-State-of-democracy-in-africa/> accessed 17 January 2017.
103
ibid.
104
For example, Ghana, Senegal, Zambia, South Africa. See Martin Van Vliet, ‘Weak Legislatures,
Failing MPs, and the Collapse of Democracy in Mali’ (2014) 113 African Affairs 45.
105
African Charter on Human and Peoples’ Rights, art 12(2).
3.1.8 Paragraph 10
Paragraph 10 ‘recognis[es] the inherent rights of [IDPs] as provided for and protected in
international human rights and humanitarian law and set out in the [Guiding Principles]’.
This paragraph did not attract debate. However, it is significant as it represents the final
repudiation of the position expressed by African States in Khartoum in 1998, when the
rights of IDPs were barely recognized, even though their plight often formed the sub-
ject matter of discussions at meetings.106 It is also significant for its recognition of the
Guiding Principles as an important framework for the protection of IDPs.
3.1.9 Paragraph 11
Paragraph 11 affirms the ‘primary responsibility and commitment [of States] to re-
spect, protect and fulfil the rights [of IDPs]’. This paragraph was intended to validate
the Convention’s rights-based foundations. Similar expressions appear elsewhere in the
Convention.107 There was a protracted debate regarding this paragraph when Sudan,
supported by Libya and Egypt, proposed an amendment to limit the rights of IDPs to
citizens only.108 Owing to its potential to exclude displaced non-citizens, other States
opposed the proposal and Sudan withdrew it.
3.1.10 Paragraph 12
Paragraph 12 notes the role of international organizations in the protection of IDPs –
in particular, UNHCR and ICRC. This paragraph was a late addition to the text of the
preamble. An initial draft of the Convention contained reference only to the ICRC as
playing the lead role in coordinating protection and assistance to IDPs.109 During de-
bate, however, several States – namely Chad, Namibia, Zambia, Liberia, Sierra Leone,
Cote d’Ivoire, DRC, Kenya, and Uganda – intervened to propose that the mandate for
IDPs in Africa should instead be assigned to UNHCR, given the organization’s analo-
gous role in relation to refugees.110 It was apparent from their interventions that they
were motivated by frustration regarding the lack of clarity relating to institutional
mechanisms for addressing the needs of IDPs.111 Their proposal, however, triggered
strong opposition from other agencies112 that also wanted to have a role, as well as from
the AU Commission which sought to keep this function to itself.113
The final text of paragraph 12 was drafted by the author in response to this debate and
was tabled by Chad114 during the concluding moments of the ministerial meeting on 11
106
See part 2.1.1 above.
107
Arts 2, 3, 4(4), 9.
108
Again, this should be seen in context, as Sudan had a large number of South Sudanese for whom
it was not keen to assume responsibility as IDPs: n 77.
109
Annotated Outline (n 67) 1.
110
Author’s notes.
111
This had also informed the 2004 proposal to amend the OAU Convention.
112
ICRC, UNOCHA, UNICEF.
113
Under its Division of Humanitarian Affairs.
114
The author drafted the text of para 12 on a piece of paper during the debate and lobbied Chad to
table it: author’s notes.
November 2008. It was adopted by consensus. The difficulty, however, is that paragraph
12 does not resolve the problem of clarity regarding the institutional mechanism for ad-
dressing the needs of IDPs.115 The issue was partly addressed during the humanitarian
reform initiatives of 2005,116 when the ‘cluster approach’ was introduced,117 which in-
cluded lead organizations as the ‘providers of last resort’.118 However, this approach has
received criticism as yet another convenient deferment of the desired solution.119
3.1.11 Paragraph 13
Paragraph 13 ‘recall[s] the lack of a binding African and international legal and institu-
tional framework specifically for the prevention of internal displacement and the protec-
tion of and assistance to [IDPs]’. This paragraph reiterates the text of the Ouagadougou
Declaration and was not contested.120
3.1.12 Paragraph 14
Paragraph 14 reaffirms the ‘historical commitments’ made by African States to the
protection of refugees and IDPs, and in particular, to the 2004 decision by the AU
Executive Council that ‘the specific needs of [IDPs] … should be addressed through
a separate legal instrument’.121 The inclusion of this paragraph was not contested.
The ‘historical commitments’ referred to in this paragraph relate to the agenda for
African solidarity in the struggle against colonialism, which lay behind the creation
of the OAU in 1963 and included the commitment to protect and assist refugees
coming out of colonial territories.122 The emphasis on decolonization at that time
resulted in a focus on refugees and the elaboration of the OAU Convention. Beyani
also suggests that the somewhat static provisions of the OAU Charter, particularly on
non-interference in the internal affairs of States, may have prevented a more robust
approach to the protection and assistance of IDPs as well.123 Nevertheless, this failure
has now been redeemed by the decision to elaborate the Kampala Convention.
115
Gerald Martone, ‘The IDP Quagmire: Old Wine, New Bottles’ <http://www.interaction.org/
library/detail.php?id=4582> accessed 21 January 2017.
116
‘2005 World Summit Outcome’ (n 10) para 132.
117
‘Cluster Approach (IASC): UNHCR Emergency Handbook’ <https://emergency.unhcr.org/
entry/61190/cluster-approach-iasc> accessed 21 January 2017.
118
‘2005 World Summit Outcome’ (n 10). This arrangement replaced the ‘collaborative approach’
that had hitherto been in operation. IASC, ‘IDPs Implementation of Collaborative Approach’
(23 September 2004) <https://interagencystandingcommittee.org/files/idps-implementation-
collaborative-approachpdf> accessed 1 October 2019. See also Costanza Adinolfi and others
(GSDRC), ‘Humanitarian Response Review: An Independent Report’ (2005).
119
Martone (n 115).
120
Ouagadougou Declaration (n 33).
121
AU doc EX.CL/Dec.127 (V) (3 July 2004). See also AU doc EX.CL/177 (VII) (28 January
2005); AU doc EX.CL/Dec.289 (IX) ( July 2006).
122
See nn 90, 91, 92. Explaining this point, Tanzania’s former President Julius Nyerere said:
‘[C]learly … we saw refugees coming out of colonial countries and our idea was, treat these
people well’: UNHCR, ‘Africa: Innocence Lost’ (1999) 2 Refugees Magazine 1.
123
Beyani (n 71).
3.2 Operative provisions
3.2.1 Article 1: the definitions

Article 1 of the Kampala Convention defines key terms used in the Convention. Many
of these are based on existing international law instruments, but some have been con-
textualized to reflect the specific circumstances in Africa.124 Many of the definitions in
article 1 were treated as commonplace provisions and adopted without any significant
debate. However, several – including ‘armed groups’ (article 1(e)), ‘harmful practices’
(article 1(j)), ‘internally displaced persons’ (article 1(k)), and ‘non-State actors’ (art-
icle 1(n)) – generated significant debate.
Article 1(e): ‘armed groups’

The definition of ‘armed groups’ in article 1(e) extends to ‘dissident armed forces or
other organized armed groups that are distinct from the armed forces of the State’. This
definition attracted strong interventions by some States, most of which expressed con-
cern that including such groups in the Convention could inadvertently confer legit-
imacy on them. Supported by Sudan and Egypt, Libya even proposed the deletion of
article 1(e) and all subsequent references to ‘armed groups’ in the Convention.125 Libya
later dropped the proposal and article 1(e) was retained, with States in favour arguing
that the removal of references to ‘armed groups’ denied the fact of their existence and
the importance of holding them accountable for their actions. The debate regarding
article 1(e) also included discussion of the relationship between ‘armed groups’ as de-
fined here, and ‘non-State actors’ as defined in article 1(n). Here, the resource persons
participating in the debate advised that, while ‘armed groups’ are generally also ‘non-
State actors’, there exists a grey area concerning ‘armed groups’ that operate by virtue of
their links to individuals associated with the State.
Article 1(j): ‘harmful practices’

Article 1(j) defines ‘harmful practices’ and draws on similar definitions under
international humanitarian law126 and the UN Guiding Principles.127 While most
States agreed with the general thrust of the definition, some did not like the broad
span of its wording, particularly the inclusion of the word ‘all’ to qualify ‘behav-
iour, attitudes and/or practices’. They suggested that the definition should be spe-
cific regarding the kinds of ‘behaviour, attitudes and/or practices’ to be regarded
as ‘negatively affecting the fundamental rights of persons’. Other States, however,
preferred the relative ambiguity inherent in the broad wording of the definition128
and thus it was retained.
124
ibid.
125
Author’s notes.
126
Declaration on the Rules of International Humanitarian Law Governing the Conduct of
Hostilities in Non-International Armed Conflicts, San Remo, 1990, Principle 2(2) <https://
www1.umn.edu/humanrts/instree/1990a.htm> accessed 12 December 2016.
127
In particular, Principles 3, 5, 6, 8.
128
Author’s notes.
Article 1(k): ‘internally displaced persons’

Article 1(k) defines ‘internally displaced persons’. This definition replicates the defin-
ition in the UN Guiding Principles. It was strongly supported by humanitarian agen-
cies, especially the ICRC, as it was descriptive of IDPs as a category of people and did
not imply a distinctive legal status for them.129 Nevertheless, it generated some debate
among States.
While most States supported the inclusion of persons displaced by ‘natural disasters’,
Egypt opposed the inclusion of the phrase ‘human-made disasters’ for its potential to
extend to displacement resulting from development projects and concerns about the
potential implications for issues of compensation (discussed further under articles 4
and 12 below).130 Egypt dropped its objection when attention was drawn to article 4(5)
of the Convention, which has the effect of restricting States’ obligations with respect
to development-related displacement, so long as development projects are justified by
‘compelling and overriding public interest’.
A counter-proposal by Uganda to add ‘displacement caused by lack of development’
was withdrawn at the request of other delegations and on the counsel of the resource
persons, who expressed the view that this would widen the definition and blur the crit-
ical distinction between those displaced by tangible causes – such as the construction
of dams, railway lines, highways, and airports – and those who moved solely due to
a lack of development. The amendment would also have affected the scope of States’
obligations under articles 4 (preventing displacement), 10 (displacement induced by
projects) and 12 (compensation).131
Article 1(r): ‘States parties’

Article 1(r) of the Kampala Convention, which defines ‘States Parties’ as ‘African
States which have ratified or acceded to this Convention’, is highlighted here only to
record that on 6 December 2012, the 15th instrument of ratification was deposited
by the Kingdom of Swaziland (now known as the Kingdom of Eswatini), enabling
the Convention to come into force. To mark the occasion, a ceremony was held at the
AU Commission that day.132 Since then, the Convention’s coming into force has been
celebrated on 6 December. Technically, however, it came into force 30 days later on 4
January 2013, in accordance with article 17(1) of the Convention. This relatively quick
process of ratification can be attributed, at least in part, to the Convention’s relatively
unobjectionable and inclusive nature.133
129
ibid.
130
ibid. See also Bogumil Terminski, Development-Induced Displacement and Resettlement:
Theoretical Frameworks and Current Challenges (University of Geneva 2013) Indiana Digital
Library of the Commons, 39 <http://dlc.dlib.indiana.edu/dlc/handle/10535/8833> accessed
18 August 2019.
131
Author’s notes. See also Annotations (n 6) 32.
132
The author participated in the ceremony.
133
See UN Human Rights Council, Report of the Representative of the Secretary-General on the Human
Rights of Internally Displaced Persons, UN doc A/HRC/13/21 (5 January 2010) para 13.
3.2.2 Article 2: the objectives of the Convention

Article 2 of the Kampala Convention sets out its five main objectives. Although it does
not include all those enumerated in the original draft of the Convention,134 it expands
on the original objectives set out in the Ouagadougou Declaration and provides the
core basis for the obligations assumed by States under article 3 of the Convention.
The negotiation of article 2 raised some difficult issues. For example, article 2(a)
declares that the Convention’s aim is to ‘[p]romote and strengthen regional and na-
tional measures to prevent or mitigate, prohibit and eliminate root causes of internal
displacement as well as provide for durable solutions’. While this may seem relatively
innocuous, some States expressed concern about the scope of the term ‘measures’ and
the relevance of its qualifiers, ‘regional’ and ‘national’. Their concern was that a failure
to define the relevant ‘measures’ in this provision would leave room for the use of ‘any
measures’, including the possibility of military force. Some States were also concerned
that the inclusion of the word ‘national’ could be seen as ‘legitimizing’ internal dissent.
Article 2(b) relates to the need to establish a new legal framework for addressing
displacement. The initial draft of this provision was somewhat qualified, setting out
States’ intention to ‘[e]stablish a legal framework for preventing internal displacement,
where possible, and protecting and assisting [internally displaced persons] in Africa’.135
However, the qualifier, ‘where possible’, was removed because of its potentially selective
application.
Articles 2(d) and 2(e) articulate the Convention’s aim to set out the respective ob-
ligations and responsibilities of States and non-State actors in addressing internal dis-
placement. Considering the controversy that surrounded the inclusion of non-State
‘armed groups’ in the definition of internal displacement, the acceptance of these pro-
visions is notable. In earlier drafts of the Convention, objectives relating to States and
non-State actors were expressed conjointly.136 However, following objections by some
States, they were split in two, with articles 2(d) and 2(e) addressing the two groups
respectively.137 Although non-State actors would not be party to the Convention, and
there was no discussion as to that fact, nevertheless, these two provisions were drafted
in such a manner as to place the obligations of States and non-State armed groups on
an equal footing, making it clear that the duty to prevent internal displacement, protect
and assist IDPs does not exclusively rest with States.
3.2.3 Article 3: general obligations relating to States parties

Article 3 sets out the general obligations of States parties to the Kampala Convention
with respect to preventing internal displacement and protecting and assisting IDPs.
Many of these obligations are drawn from States’ existing obligations under inter-
national humanitarian and human rights law, although in some respects the standards
set out in the Convention are higher. For example, the obligation on States to ensure hu-
manitarian organizations’ access to IDPs under article 3(1)(j) extends beyond existing
134
Annotated Outline (n 67).
135
Author’s notes, emphasis added.
136
See n 105.
137
Author’s notes.
international humanitarian law obligations, which relate only to conflict situations,138

to include access in non-conflict situations as well. Despite this, consideration of this
article did not attract much debate, probably due to the implicit recognition in the text
of States’ authority over other actors.
The obligations on States parties under article 3(1) are considerable and could
be challenging to deliver on. Nevertheless, there are some notable omissions. For
example, article 3 could have followed the pattern at articles 2(d) and 2(e) by split-
ting the roles and responsibilities of States from those of non-State actors. As a re-
sult, this provision does not clearly set out the responsibilities of non-State actors
with respect to internal displacement. It also does not explicitly address the obli-
gations of individual State officials, which could be important, in particular, under
articles 3(1)(g), (h), and (i). There is also no explicit obligation on States to incorp-
orate displacement-related crimes into domestic law or to investigate, prosecute,
and punish perpetrators of displacement. Finally, the prohibition on discrimination
against IDPs on any ground could have been much stronger than the mention that it
receives in article 3(1)(d).
Article 3(2) deals with implementation and specifies a number of actions that States
parties should take in order to uphold their obligations under paragraph 1. These in-
clude incorporating their obligations under the Convention into domestic law (article
3(2)(a)) and addressing the needs of host communities (article 3(2)(c)). Kälin has
observed that host communities often end up assuming considerable burdens as a re-
sult of IDP influxes and proposed the concept of ‘displacement-affected communities’,
in which humanitarian interventions also include development activities.139
Articles 3(2)(b) and 3(2)(c) require States to adopt appropriate policies and des-
ignate an authority to coordinate activities addressing IDP issues. Under article 3(2)
(d), States should provide ‘to the extent possible’ the funds required for protection and
assistance, without prejudice to receiving international support.140 Where resources are
inadequate, article 5(6) of the Convention requires States to seek international assist-
ance without delay.
Article 3(2)(e) encourages States to incorporate relevant Convention principles
into peace agreements. Article 3(2)(e) received strong support from States that had
experienced conflict and successfully negotiated settlements. The role played by the
Women in Peacebuilding Network in Liberia (WIPNET)141 in the Liberian peace
138
1949 Geneva Conventions and their 1977 Protocols.
139
UN doc A/HRC/13/21/Add.2. A similar suggestion was made by Ruud Lubbers, UN High
Commissioner for Refugees (2000–05), in ‘Refugees/IDPs as Vehicles for Development’:
Ruud Lubbers, ‘Statement by UN High Commissioner for Refugees’ (First Meeting of the
High Commissioner’s Forum) (27 June 2003) <https://www.unhcr.org/en-au/protection/
convention/3f12b8d34/statement-mr-ruud-lubbers-united-nations-high-commissioner-
refugees-first.html> accessed 13 February 2017.
140
Preamble para 11 (see part 3.1.9 above) reaffirms this charge as a primary responsibility of States.
141
African Women in Peace Support Group, ‘Liberian Women Peacemakers: Fighting for the Right
to Be Seen, Heard and Counted’, Africa World Press (2004). See also JOM Okello, ‘The Liberia
Crisis 1989–2005: A Personal Reflection’ (2006) 85 (unpublished manuscript, with the author).
negotiations in 2003 was highlighted as a positive example in discussions regarding

this provision.142
3.2.4 Article 4: obligations of States parties relating to protection from internal displacement
Article 4 sets out States’ obligations in relation to preventing the arbitrary displace-
ment of persons.143 It was intended to be comprehensive and to prohibit arbitrary
displacement in all forms and circumstances. Article 4(1) emphasizes States’ existing
obligations under international law to avoid conditions that might lead to arbitrary dis-
placement, while article 4(2) requires States to develop early warning and risk reduc-
tion measures aimed at preventing displacement. Articles 4(1) and 4(2) were adopted
without significant debate. Article 4(3) addresses the role of international organiza-
tions and humanitarian agencies in preventing displacement. In discussions on this,
Zimbabwe raised concerns about the activities of some international NGOs present in
African States – in particular, their failure, on occasions, to respect local laws and the
‘meagre results of their work’.144
Prevention of displacement and the right of all persons to be protected against all
forms of arbitrary displacement is the focus of article 4(4). Inspired by the Guiding
Principles,145 article 4(4) highlights what was so far only implicit in international human
rights law – namely the rights to freedom of movement and choice of residence.146
Egypt expressed concern about this provision’s potential compensation implications,
in particular in relation to the prohibition on forced evacuation from disaster.147
Article 4(5) imposes obligations on States parties to protect communities with
special attachment to land – for example, subsistence farmers, indigenous peoples, and
pastoralists. There was strong advocacy for the rights of these communities during the
drafting of this provision. However, there was also a clear division between States with
high concentrations of pastoralists and those without, with the latter more likely to
view pastoralists, many of whom often transcend international borders seeking pasture
and water, as disruptive to their farming communities.
Article 4(6) obliges States to ‘declare as offences punishable by law acts of arbitrary
displacement that amount to genocide, war crimes or crimes against humanity’. While
the Convention does not define arbitrary displacement itself as a criminal offence,
142
Author’s notes.
143
See also Elizabeth Ferris, ‘Internal Displacement in Africa: An Overview of Trends and
Opportunities’, Ethiopian Community Development Council Annual Conference – ‘African
Refugee and Immigrant Lives: Conflict, Consequences, and Contributions’, Brookings–LSE
Project on Internal Displacement (2–4 May 2012) <https://www.brookings.edu/research/
internal-displacement-in-africa-an-overview-of-trends-and-opportunities/> accessed 13
February 2017.
144
Author’s notes. See also ‘Interview with Nicky Oppenheimer’ ( July 2007) 464 New African
Magazine 32. Oppenheimer, a South African philanthropist, was chairman of the De
Beers Group at that time.
145
Guiding Principles (n 3) Principle 6.
146
Annotations (n 6).
147
Egypt expressed concern about art 4(4)(f). It had raised similar concerns in relation to the def-
inition of ‘arbitrary displacement’ in art 1(d), which defines the term by reference to art 4.
article 4(6) covers its worst forms. Establishing a relevant offence would depend on
the satisfaction of relevant international law definitions of genocide, war crimes, and
crimes against humanity.148 Article 4(6) was passed with Sudan and Libya expressing
reservations. Neither State offered an explanation for its reservation, although it was
likely a response to allegations of genocide in Sudan’s Darfur region,149 with Libya again
expressing solidarity.150
3.2.5 Article 5: obligations of States parties relating to protection and assistance

Article 5 addresses the obligations of States parties relating to protection and assistance
of those displaced within their territory or jurisdiction and illustrates the often delicate
relationship between notions of sovereignty and ‘humanitarianism’.
Article 5(1) confirms the primary duty of States to provide protection and assist-
ance to IDPs. During debate, some States sought clarity on the word ‘primary’, as they
were concerned about the role of non-State actors in this regard. However, the resource
persons’ explanation that humanitarian agencies had the ‘other’ responsibility allayed
these concerns. Article 5(2), which obliges States to cooperate to protect and assist
IDPs upon the request of another State or the Conference of States Parties, also gener-
ated considerable discussion, with some States expressing concern that the phrase ‘shall
cooperate’, with respect to a matter regarded as ‘internal’ to each State, impinged on the
principle of ‘non-interference’ in internal affairs. Some States also expressed concern
that the inclusion of the Conference of States Parties in this provision could result in
unsolicited interventions wherein the State concerned could find itself in the minority
or altogether isolated in a decision by the Conference of States Parties to intervene in its
territory. Nevertheless, the provision was eventually adopted in its current form.
Article 5(3) urges States to respect the mandates of the AU, UN, and other inter-
national humanitarian organizations. This raised issues regarding the use of the word
‘mandates’ in a context where clarity regarding institutional mechanisms for protecting
and assisting IDPs was seen as lacking. Some States also saw article 5(3) as prejudi-
cial to the notion of ‘sovereignty’, but this concern was addressed by the addition of
article 5(12).
The obligation in article 5(4) on States to protect and assist persons displaced by
natural or human-made disasters, including the impacts of climate change, echoed the
debate on article 1(k) (see above), with Egypt again raising concerns about the term
‘human-made disasters’. The reference to ‘climate change’ was generally well received,
however, given its likely adverse effects in Africa.151
148
See eg Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9
December 1948, entered into force 12 January 1951) 78 UNTS 277.
149
Sudan’s Darfur was undergoing insurgency and there were allegations of genocide by govern-
ment forces. See Report of the International Commission of Inquiry (n 84). Marlise Simons
and Neil MacFarquhar, ‘Court Issues Arrest Warrant for Sudan’s Leader’ New York Times (New
York, 4 March 2009) <https://www.nytimes.com/2009/03/05/world/africa/05court.html>
accessed 3 January 2017.
150
Author’s notes.
151
Walter Kälin, ‘The Climate Change–Displacement Nexus’, Brookings Institution (16 July 2008).
Articles 5(5), 5(6), and 5(7) all require States to cooperate with and facilitate the
role of international organizations and other agencies. Article 5(5) requires States
to assess the needs of both IDPs and host communities ‘in cooperation with inter-
national organizations or agencies’; article 5(6) obliges States to seek the assistance
of international organizations and other agencies where resources are inadequate.
As with article 5(2), some States expressed concern regarding the ‘requirement to
cooperate’ with international organizations. It was for this reason that the words
‘where resources are inadequate’ were inserted in article 5(6). Humanitarian agen-
cies participating in the drafting of the Convention also lobbied intensely on these
provisions, with the goal of removing restrictions on access to some sections of
needy populations. This lobbying led to the insertion of the last sentence of article
5(6), which provides that ‘[s]uch organizations may offer their services to all those
in need’.
Article 5(7) obliges States to ensure the humanitarian and impartial character of
relief action and to guarantee security, and the rapid and unimpeded passage of relief
items and personnel. In order to ensure that States retain ultimate control over such
relief, the provision asserts that ‘States Parties shall have the right to prescribe the tech-
nical arrangements under which such passage is permitted’. Article 5(8) represents the
epitome of the humanitarian concept, obliging States to ‘uphold and ensure respect for
the humanitarian principles of humanity, neutrality, impartiality and independence of
humanitarian actors’. In discussions regarding this provision, States emphasized that
the achievement of these goals requires reciprocal action by humanitarian actors, which
must respect the laws of the States in which they operate.
Article 5(9) obliges States to respect the right of IDPs to ‘peacefully request or
seek protection and assistance’. This provision introduces an entirely new idea to
the field of IDP protection and represents the first time that the right of IDPs to
request protection and assistance directly and independently of the State has been
sanctioned. Article 5(9) would have been truly groundbreaking but for the restrictive
phrase ‘in accordance with relevant national laws’ that was introduced into it. In
inserting this phrase, States created parameters within which IDPs would be able to
request protection and assistance directly and independently of them, thus weak-
ening the provision.
With humanitarian workers increasingly becoming the targets of violent attacks,
article 5(10) obliges States to protect them and their assets. In practice, fulfilling this
undertaking may prove challenging, especially where the State does not exercise com-
plete or effective control over its territories. It is perhaps notable that article 5(10) does
not address the need for non-State actors to also ensure the protection of humanitarian
workers. However, article 5(11) requires States parties to ensure that armed groups act
in conformity with their obligations under article 7 (see part 3.2.7 below).
3.2.6 Article 6: obligations relating to international organizations and humanitarian agencies

Article 6 regulates the conduct of international organizations and humanitarian agen-
cies in relation to IDPs. Article 6(1) requires them to discharge their obligations in
conformity with international law and the local laws of the countries hosting them.
Zimbabwe again expressed concern regarding the historical failure of some agencies
to do so.
Anticipating the potential for abuse or mistreatment of IDPs by relevant organiza-

tions and agencies, article 6(2) requires humanitarian actors to respect the rights of
IDPs, while article 6(3) emphasizes the requirement that they act in accordance with
the principles of humanity, neutrality, impartiality, and independence.
3.2.7 Article 7: protection and assistance to IDPs in situations of armed conflict
Article 7 addresses the protection and assistance of IDPs in situations of armed conflict,
and in particular, prohibits armed groups from engaging in activities likely to result in
harm to IDPs. As was the case for the definitional provisions of the Convention (see
above), some States expressed unease that articulating the obligations of armed groups
could legitimize their existence and role in conflict. As a result, article 7 underwent re-
visions from its original draft to its final form.
One of the most significant revisions was the insertion, in article 7(4), of criminal li-
ability for members of armed groups responsible for acts that violate the rights of IDPs,
whether under international or national laws. This assignment of criminal responsibility
was innovative. However, such a provision is meant to combat impunity. It could have
been truly groundbreaking if it also extended criminal liability to members of the armed
forces of the State. In this regard, it could also have bolstered the obligation on States under
article 3(1)(g) to ensure individual accountability for acts of arbitrary displacement.
3.2.8 Article 8: obligations relating to the AU

Article 8 sets out the rights and obligations of the AU in supporting States parties in pro-
tecting and assisting IDPs. Notably, these include, in article 8(1), the ‘right to intervene
in a Member State pursuant to a decision of the Assembly … in respect of grave circum-
stances, namely: war crimes, genocide, and crimes against humanity’. When this provi-
sion was first introduced, States were strongly opposed to the inclusion of any references
to ‘intervention’. However, after a lengthy debate, consensus was reached on the final
wording, which replicates a similar provision in the AU Constitutive Act.152 Its pedigree
notwithstanding, some States still expressed concern at the reference to specific justifica-
tions for intervention in article 8(1) and the possibility that, despite the qualifier phrase,
‘pursuant to a decision of the Assembly [of Heads of State of the AU]’, intervention would
still occur. In response to these concerns, article 8(2) was introduced, which subjects
intervention to article 4(j) of the Constitutive Act, although the effect would be the same,
save that in this case the intervention would be at the initiative of the Member States.153
Article 8(3) deals with the role of the AU in coordinating and collaborating with
States, humanitarian actors, and others in relation to internal displacement. The cre-
ation of a dedicated office for coordinating IDP-related activities was resisted, with the
AU Commission preferring to keep the function to itself.154 Article 8(3)(b) requires
152
AU Constitutive Act, art 4(h).
153
See Ben Kioko, ‘The Right of Intervention under the African Union’s Constitutive Act: From
Non-Interference to Non-Intervention’ (December 2003) 85 International Review of the Red
Cross 807.
154
As discussed above, when the draft Convention was reviewed in May 2007, the Consultative
Group had agreed to establish a fund and regional office to coordinate protection and assistance
to IDPs. However, the text of the draft Convention referred only to ICRC playing the lead role
the AU to coordinate the mobilization of resources, while article 8(3)(c) directs it to

collaborate with international organizations to support such measures. Article 8(3)(c)
was carefully crafted to accommodate the concern expressed at articles 5(2), 5(3), and
5(5) with regard to the obligation to cooperate to protect and assist IDPs upon the
request of the Conference of States Parties or an affected State, and where the phrase
‘shall cooperate’ on a matter regarded as internal was seen as pushing the boundary too
far against the ‘non-interference in internal affairs’ rule.
Article 8(3)(d) compels the AU to cooperate with States and international
humanitarian organizations on measures to be taken to protect and assist IDPs.
With ‘international organizations’ and ‘other relevant actors’ not defined in the
Convention, reference to ‘international organizations’ and ‘other relevant actors’ in
article 8(3)(d) was seen as open to any interpretation, including to mean military
organizations or any international or regional actors,155 particularly with interven-
tion already implied in the obligation to cooperate. States therefore preferred to
clarify that the cooperation with the AU will be directly with them and not through
any other body, thus leading to the insertion of the phrase ‘cooperate directly’ into
article 8(3)(d).
Articles 8(3)(e) and (f) oblige States to share information and cooperate with the
African Commission on Human and Peoples’ Rights and its Special Rapporteur on
Refugees, Returnees, IDPs and Asylum Seekers. These provisions did not raise much
concern, as the two institutions were seen as existing largely in name only.
3.2.9 Article 9: obligations of States parties relating to protection and assistance during internal
displacement
Article 9 is arguably the most important provision of the Kampala Convention. It sets
out the core obligations of States parties with respect to protecting and assisting those
who have been internally displaced. Article 9(1) emphasizes the obligations on States
to respect the fundamental human rights of IDPs, while article 9(2) sets out specific
areas of activity requiring action by States. These include measures to ensure satisfac-
tory living conditions, address special needs, guarantee freedom of movement, reunite
families who have been separated, and allow IDPs to participate in decisions that affect
their lives.
in coordinating protection and assistance to IDPs. During the debate, Chad, Namibia, Zambia,
Liberia, Sierra Leone, Cote d’Ivoire, DRC, Kenya, and Uganda intervened to propose that the
mandate for IDPs in Africa be assigned instead to UNHCR. As discussed, it was apparent that
these interventions were motivated by frustration with the lack of clarity on the institutional
mechanism for addressing the needs of IDPs, which was partly also the reason for the initial pro-
posal in 2004 to amend the OAU Convention: author’s notes.
155
For example, the regional military interventions by both the Southern African Development
Community (SADC) in Lesotho, and the Economic Community of West African States (ECOWAS/
ECOMOG) in Liberia, Sierra Leone, and Cote d’Ivoire, some of which were without the invitation
or consent of the States concerned. See Cedric de Coning, ‘Lesotho Intervention: Implications for
SADC: Military Interventions, Peacekeeping and the African Renaissance’ 1 (2000) Africa Dialogue
Monograph Series (Sabinet) 39. See also Peter Arthur, ‘ECOWAS and Regional Peacekeeping
Integration in West Africa: Lessons for the Future’ (2010) 57 Africa Today 3.
Article 9 was intentionally made comprehensive and deals with a wide range of im-
portant rights for IDPs. For example, many IDPs encounter discrimination, often as
a result of displacement itself. Article 9(1)(a) requires States to protect the rights of
IDPs to non-discrimination, in accordance with the Universal Declaration of Human
Rights,156 other international human rights instruments, and the Guiding Principles.
Article 9(1)(b) requires States to refrain from and prevent ‘[g]enocide, crimes
against humanity, war crimes and other violations of international humanitarian law’
against IDPs. Article 9(1)(c) further requires them to protect IDPs from ‘killing, sum-
mary execution, arbitrary detention, abduction, enforced disappearance or torture and
other forms of cruel, inhuman or degrading treatment or punishment’. Discussions
regarding these provisions were delicate, given reports of brutal war and accounts
of genocide in some States.157 While all States spoke strongly in support of article
9(1)(b), Sudan stood out when it defended the actions it had taken to prevent geno-
cide in Darfur.158 With sexual and gender-based violence, human trafficking, and child
recruitment into armed groups being significant issues in Africa,159 article 9(1)(d) ob-
liges States to protect IDPs from such acts. Article 9(1)(e) requires States to prevent
‘starvation’, reinforcing similar obligations on States under international humanitarian
law.160 This provision was not debated.
Article 9(2) imposes positive obligations on States to implement specific measures
aimed at protecting and assisting IDPs. The emphasis here is on accessing and meeting
the basic needs of IDPs and hosting communities.
Article 9(2)(e) requires States to respect the rights of IDPs to seek safety in an-
other part of the country and to be protected against forcible return to places where
life, safety, liberty, and/or health would be at risk. This provision echoes the language
of the principle of non-refoulement under international refugee and human rights law.
In fact, an earlier version of the provision had even included explicit reference to ‘the
right to seek asylum’. However, this was replaced with the article 9(2)(f) guarantee of
‘freedom of movement and choice of residence’ for IDPs, in order to keep the focus of
the Kampala Convention on internal displacement.161 The right of IDPs to seek asylum
elsewhere was instead addressed later, in article 20(1).
156
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA res 217 A(III).
157
See n 149.
158
Author’s notes.
159
See eg Vera Achvarina and Simon F Reich, ‘No Place to Hide: Refugees, Displaced Persons, and
the Recruitment of Child Soldiers’ (2006) 31 International Security 127.
160
See eg art 5(4)(1) of Protocol Additional to the Geneva Conventions of 12 August 1949 and
relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, en-
tered into force 7 December 1978) 1125 UNTS 3 (Protocol I) and art 14 of Protocol Additional
to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-
International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125
UNTS 609 (Protocol II). Starvation is also a crime under the Rome Statute of the International
Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3. See practice
relating to Rule 53, Starvation as a Method of Warfare, ICRC, Customary IHL Database <https://
ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule53> accessed 16 February 2017.
161
Author’s notes.
The remaining parts of article 9(2) include obligations on African States to safe-
guard the civilian and humanitarian character of IDP settlements (article 9(2)(g)),
protect property left behind (article 9(2)(i)), safeguard against environmental degrad-
ation (article 9(2)(j)), and consult IDPs regarding decisions that affect them (article
9(2)(k)). Article 9(2)(l) obliges States to ensure that IDPs enjoy their civic and polit-
ical rights. The reference here to IDPs ‘who are citizens’ is unfortunate given that non-
citizens also have rights. In order to assess the impact of humanitarian interventions,
article 9(2)(m) requires States to monitor and evaluate the humanitarian assistance
delivered to IDPs, including in accordance with the Sphere Standards.162
Finally, many States lack capacity to fulfil their obligations. Thus, article 9(3) re-
quires them to seek assistance from international organizations and other humanitarian
actors. The phrase ‘where appropriate’ was added to address the concerns of States
about being duty-bound to work with such actors, as discussed above.
3.2.10 Article 10: displacement induced by projects

Article 10 addresses internal displacement caused by projects undertaken by public or
private actors. The initial draft of article 10 was based on similar provisions in the UN
Guiding Principles163 and the Great Lakes Protocol on IDPs.164 However, it underwent
several amendments during its consideration, with the result that some of the safeguards
that it had contained were removed. For example, article 10(1) relates to the obligation
on States to prevent displacement caused by development projects. As it had done earlier,
Egypt expressed strong concern regarding the possibility of opening up compensation
claims arising out of development projects. The fact that a project would be exempt if it
met the test of being compelling and in the overriding public interest, which had allayed
Egypt’s concerns in relation to earlier provisions, did not satisfy Egypt here. Instead, the
phrase ‘as much as possible’ was inserted into the expression of the obligation.
Article 10(2) relates to the need for States to consult with populations likely to be
displaced by projects. An earlier version of article 10(2), requiring States to obtain the
consent of affected communities, was deleted as States objected to the notion of con-
sent by the affected population being a precondition to initiating development projects.
Instead, they settled for the current formulation, which requires only ‘full information
and consultation of persons likely to be displaced by projects’.
As noted earlier, a proposal by Uganda relating to displacement induced by lack of
development was dropped due to lack of support by other States. A draft article on hu-
manitarian assistance was similarly dropped, the contents being absorbed into articles
5 and 8 (see above).
3.2.11 Article 11: obligations of States parties relating to sustainable return, local integration,
or relocation
Article 11 addresses the need for lasting solutions for those who have been internally dis-
placed, including sustainable return, local integration, or relocation. An earlier version
162
The Sphere Handbook <https://www.spherehandbook.org/en/what-is-sphere/> accessed 20
June 2018.
163
Particularly Principles 6(2)(c) and 6(2)(d).
164
Great Lakes Protocol on IDPs, art 1(5).
had included the phrase ‘durable solutions’. However, most States regarded that phrase
as having acquired a legal meaning with specific application to refugees and felt it should
not be replicated in a treaty on IDPs. The revised article 11(1) therefore obliges States
to ‘seek lasting solutions to the problem of displacement by promoting … voluntary re-
turn, local integration or relocation on a sustainable basis and in circumstances of safety
and dignity’. Article 11(2) asserts the right of IDPs to make ‘free and informed’ decisions
regarding such solutions. As Kälin explains, however, other than the rights to freedom of
movement and choice of residence expressed in the ICCPR,165 no general rule explicitly
affirms these rights, and they can be limited under certain conditions.166
Discussions about article 11 demonstrated States’ awareness of the fact that many
African States lack capacity on their own to meet the protection, assistance, return, and
reintegration needs of IDPs. Article 11(3), which urges States to cooperate with the
AU, international organizations, and other humanitarian actors to find solutions was
therefore aimed at addressing that need.
To ensure the existence of appropriate safeguards for IDPs upon return, humani-
tarian agencies lobbied for the inclusion of article 11(4), which requires States to
simplify the mechanisms for resolving disputes regarding the property of IDPs, and
article 11(5), which requires them to take all appropriate measures to restore the lands
of communities with special dependency and attachment to land (discussed at article
4(5) in part 3.2.4 above). To accommodate the concerns of States about the possible
challenges that might arise in meeting these requirements, the phrases ‘where neces-
sary’ and ‘whenever possible’ were inserted into articles 11(4) and 11(5) respectively.
3.2.12 Article 12: compensation

As noted above, Egypt expressed concern regarding the possibility of compensation
for IDPs at a number of points during the drafting of the Kampala Convention. It again
opposed the inclusion of article 12, which requires States to provide effective remedies
to IDPs and to establish a legal framework for just and fair compensation for affected
persons. Article 12(3) requires States to make reparations for damage if they fail to pro-
tect and assist IDPs in disasters. To accommodate the concerns of Egypt, and defuse
the impact of article 12, the phrase ‘where appropriate’ was inserted into article 12(2).
3.2.13 Article 13: registration and personal documentation

Article 13 relates to registration of IDPs and the provision of necessary personal docu-
ments, including identity documents, by States. This provision generated anxiety
among humanitarian agencies due to its potential for discrimination since some States
were proposing separate registration forms and identification documents for IDPs that
differed from those for other fellow citizens. They therefore advocated for a single form
of registration and personal documentation for all, which is reflected in the final version.
3.2.14 Article 14: monitoring compliance

Under article 14, States parties agree to establish a Conference of States Parties to
monitor and review the Convention’s implementation. This provision was repeatedly
165
ICCPR, art 12.
166
Annotations (n 6) 125.
revised as discussions on this topic brought back into the debate the issue of a dedicated
office to coordinate IDP activities. Some States were of the view that such an office
would perform that function. The idea of such an office was, however, again resisted. In
the end, States agreed to establish a Conference of States parties to monitor and review
the Convention's implementation. The idea of a Conference of States parties was pro-
posed by Namibia, although the need for it arguably reflects the failure (at article 8) to
establish a dedicated office for coordinating IDP issues in Africa.167
3.2.15 Article 15: application

Under article 15, States parties agree to apply the Convention’s provisions to ‘all situ-
ations of internal displacement regardless of [their] causes’. The broad scope of this
provision – extending to ‘all situations’ – was deliberate. By reference to ‘all situations
of internal displacement’ regardless of causes, the intent was to capture all displacement
situations and, arguably, have the Convention apply practically to any of them. Although
no State opposed its wording, some felt uneasy about article 15 owing to having a sense
of being implicated in internal displacement situations in their territories.168
The apprehension of some States regarding the activities of armed groups in the
context of internal displacement is evident in article 15(2), where States once again
articulated their intention to deny them legitimacy and to assign individual criminal
responsibility to their members. Again, no corresponding mention was made of indi-
vidual criminal responsibility for members of the armed forces of the State.
3.2.16 Articles 16–23: technical provisions

Articles 16–23 deal with the technical and procedural aspects of the Kampala
Convention’s operation. These were generally uncontroversial and were adopted
without debate. However, a few points are worth noting.
As noted above (see article 1(r) in part 3.2.1 above), the Kampala Convention was
opened for signature and ratification upon its adoption on 23 October 2009. Seventeen
States signed it on the first day169 and the Kingdom of Swaziland deposited the 15th in-
strument of ratification on 6 December 2012. That occasion was celebrated by the AU and
its partners170 and, since then, 6 December has been the date on which the Convention’s
coming into force is marked, although technically, in accordance with article 17(1) (as
seen in part 3.2.1 above), the Convention came into force 30 days later on 4 January 2013.
Owing to the propinquity between IDPs and refugees, the right of IDPs to seek
asylum that was removed earlier (from article 9(2)(f)) was reinstated under the article
20 ‘Saving clause’, which provides that ‘[n]o provision in this Convention shall be inter-
preted as affecting or undermining the rights of [IDPs] to seek and be granted asylum’
under relevant international and regional frameworks.
167
Kampala Convention, art 8(3)(a).
168
Author’s notes.
169
These were: Burundi, Central African Republic, Djibouti, Equatorial Guinea, Ethiopia, The
Gambia, Liberia, Namibia, Nigeria, Republic of Congo, Rwanda, Saharawi Arab Democratic
Republic, Sierra Leone, Somalia, Uganda, Zambia, and Zimbabwe.
170
See part 3.2.1 above.
4. CO N C LU S I O N
The Kampala Convention was a significant achievement that broke new ground. The
decision to create it as a distinct legal instrument, separate from the OAU Convention,
created a dedicated space in African humanitarian and human rights law for IDPs. It
is unfortunate that no official drafting records were kept, depriving posterity of im-
portant records. Since its adoption, commendable research has been carried out on the
Kampala Convention. Nevertheless, significant gaps remain. This article supplements
that research and contributes to addressing these gaps by sharing information that was
previously not available in the public domain.
Negotiations on the text of the Kampala Convention were painstaking. There were
moments when delegations took positions that seemed irreconcilable. The patient
search for consensus and the quasi-formal modus operandi of the meetings, however,
provided a conducive atmosphere for the negotiations to advance. Delicate topics such
as ‘sovereignty’, ‘armed groups’, ‘development-induced displacement’, ‘human-made
disasters’, and ‘compensation’ were carefully negotiated, while explicit references to
sensitive concepts such as ‘humanitarian intervention’ and ‘responsibility to protect’
were avoided. The participation of eminent experts in international law as resource per-
sons during the negotiations assisted the process.
The Kampala Convention draws heavily on existing humanitarian and human rights
law, and particularly on ‘soft law’, such as the UN Guiding Principles, with the result
that the latter may, somewhat circuitously, have become ‘binding’ on States parties to
the Convention. In this way, the Kampala Convention consolidates an extensive range
of ‘soft’ and ‘hard’ law principles relating to IDPs that were hitherto scattered in nu-
merous sources, addressing all stages of internal displacement. The Convention sets out
the roles and responsibilities not only of States parties, but also of international organ-
izations and humanitarian agencies, as well as providing a framework for coordinating
their various activities.
In many ways, the Kampala Convention represents the will and determination of
States in Africa to address the problem of internal displacement in a holistic fashion,
and the ability of States to address regional issues once there is a convergence of
understanding. Additionally, it underscores the importance of regional institutions,
such as the AU, and their roles in bringing countries together to address common
challenges. Throughout the drafting process, the active support and participation of
the AU’s partner organizations, especially contributions from the Office of the UN
Special Representative on the Human Rights of IDPs, UNHCR, and the ICRC, were
vital and noteworthy. This underlines the importance of global cooperation in tackling
displacement.
While there is still a long way to go before the goals set out in the Kampala Convention
will be achieved in practice, the Convention nonetheless means that IDPs are now a
clearly defined group of people in need of protection. As such, the Convention provides
an example for the rest of the world to follow.

Article 22 in Lieu of A Travaux Préparatoires Kampala IDP Convention.

Uploaded by

Copyright:

Available Formats

Article 22 in Lieu of A Travaux Préparatoires Kampala IDP Convention.

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Article 22 in Lieu of A Travaux Préparatoires Kampala IDP Convention.

Uploaded by

Copyright:

Available Formats

International Journal of Refugee Law, 2019, Vol 31, No 2/3, 349–378

2010) Africa Renewal 6 <https://www.un.org/africarenewal/magazine/april-2010/africa’s-

2.1.1 Impetus for an African Convention on IDPs

2.1.2 The Ouagadougou initiative

2.1.3 Special Summit on IDPs

organizations (NGOs). Some of these NGOs prepared a joint statement supporting

2.2 The Convention’s adoption

2.2.1 The Summit goes to Kampala

2.2.2 Preparation of the draft Convention

3.1 Preamble to the Kampala Convention

3.2 Operative provisions

3.2.1 Article 1: the definitions

Article 1(e): ‘armed groups’

Article 1(j): ‘harmful practices’

Article 1(k): ‘internally displaced persons’

Article 1(r): ‘States parties’

3.2.2 Article 2: the objectives of the Convention

3.2.3 Article 3: general obligations relating to States parties

international humanitarian law obligations, which relate only to conflict situations,138

negotiations in 2003 was highlighted as a positive example in discussions regarding

3.2.5 Article 5: obligations of States parties relating to protection and assistance

3.2.6 Article 6: obligations relating to international organizations and humanitarian agencies

Anticipating the potential for abuse or mistreatment of IDPs by relevant organiza-

3.2.8 Article 8: obligations relating to the AU

the AU to coordinate the mobilization of resources, while article 8(3)(c) directs it to

3.2.10 Article 10: displacement induced by projects

3.2.12 Article 12: compensation

3.2.13 Article 13: registration and personal documentation

3.2.14 Article 14: monitoring compliance

3.2.15 Article 15: application

3.2.16 Articles 16–23: technical provisions

You might also like