The Kampala Convention is significant [2]. It is the first continent-wide adoption of the human rights protections embodied in the Guiding Principles on Internal Displacement, first promulgated in 1998. For more than a decade, UN insiders and politicians from member states have been saying that turning the Guiding Principles into a binding convention was impossible in the prevailing international diplomatic climate. But the African Union was able to get it done.
The text of the Convention is largely consistent with the Guiding Principles, with firm prohibitions on forced displacement and clear delineation of the responsibilities of member states to respect the rights and tend to the needs of people forced from their homes. It recognizes not only conflict and discrimination as causes of displacement, but also natural disasters, climate change [3], and large-scale development projects. The Convention commits the states parties to facilitating access of international humanitarian agencies and local civil society groups in the event that the state is unable or unwilling to live up to its protection responsibilities.
There are two important gaps in the Convention. The list of grounds for discrimination leading to displacement is limited to three --- social identity, religion and political opinion --- whereas the list in the Guiding Principles is more comprehensive, in keeping with international human rights law, including, in addition to the three in the Kampala Convention, race, color, sex, language, ethnic origin, legal status, age, disability, and place of birth.
Second, the accountability mechanisms in the Convention are virtually non-existent, raising the important question as to how states violating its terms will be sanctioned. Further, the Convention aspires to apply to non-state actors, such as armed movements and multinational corporations, and it is even less clear in these cases how they will be held to its standards.
It is easy to be cynical about the Kampala Convention. Africa is the home of 11.6 million internally displaced people --- the largest total of any single continent --- and the institutions largely responsible for this scale of displacement are some of the very AU member states that gathered in Kampala to endorse the Convention. I would like to evoke “African solutions to African problems” to counter this cynicism, but this phrase itself has become a mocking cliché, as African countries have repeatedly failed to live up to their own laws and mutual inter-governmental commitments to peace, justice and the protection of vulnerable people, with the situations in Darfur and Zimbabwe especially standing out in this regard.
But the Kampala Convention is still a hopeful development. I prefer to put it in a different context. This has been a miserable decade for international law. It began with a refusal to review the 1951 Refugee Convention on the occasion of its 50th anniversary on the grounds that opening it up for review would result not in greater refugee protection but less. Then the war on terror began in earnest, with some leaders in the United States calling the Geneva Conventions, the one human rights standard that is universally endorsed, a quaint anachronism that should not apply to the new global conflict. Attempts to establish new norms, such as the responsibility to protect, are foundering.
In this context, the decision taken by the African Union in Kampala on October 23rd looks bold and far-sighted. The AU member states have gone further than previously thought possible in codifying the Guiding Principles into a binding continent-wide convention. The responsible member states, and African civil society organizations, now have the opportunity to use its terms as the basis for preventing internal displacement and for protecting the rights of the displaced when it occurs.