by Mike Asplet and Megan Bradley
Mike Asplet is an attorney currently working with the Brookings-LSE Project on Internal Displacement. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project.
The African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa will hopefully come into force any day now. When it does, it will be the first regional treaty to comprehensively address the IDP issue, from preventing displacement to providing protection and assistance, and supporting durable solutions. The Kampala Convention represents a critical new tool for tackling some of the largest and most complex IDP situations in the world: some 10 million people are internally displaced across the continent, making up one third of the world’s IDP population.
The treaty reflects well-established normative frameworks, primarily the Guiding Principles on Internal Displacement, which have to date provided the foundation for IDP protection and assistance efforts. However, the Kampala Convention also significantly advances the normative framework on internal displacement in several key areas. These include protection from arbitrary displacement; the responsibilities of the African Union, multinational companies and private security actors; and the right to a remedy for the wrongs associated with displacement, including the loss of housing, land and property (HLP). The question of remedies for lost HLP is particularly important, as land conflict is at the root of many internal displacement flows in Africa, and the resolution of hotly contested land claims represents a key barrier to solutions for thousands of IDPs.
On first glance, it doesn’t seem like the Kampala Convention has much to say about land issues, and in particular the restitution of displaced persons’ lost property. In light of the popularization of the (contested) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (the so-called “Pinheiro Principles”) and trends such as the now-common practice of explicitly addressing the restoration of displaced persons’ HLP rights in peace treaties, it is striking that there is no reference to restitution in the Kampala Convention. This omission is clearly deliberate. While many provisions from the Guiding Principles have been specifically incorporated into the Kampala Convention (in some places without amendment), the documents diverge considerably in their approach to question of HLP rights, and restitution in particular.
The Guiding Principles on Internal Displacement indicate in Principle 29(2) that
Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.
In contrast to Guiding Principle 29(2) and the Pinheiro Principles, which both use property as their entry point into the issue of remedies for the displaced, the Kampala Convention takes a broader approach. Whereas the Guiding Principles and the Pinheiro Principles specify types of property that may be affected by displacement and underline IDPs’ rights to recover or be compensated for such assets, the Kampala Convention focuses primarily on the harms associated with displacement, including but not limited to violations of HLP rights.
To be sure, land issues are addressed in Article 11(4), which indicates that “States Parties shall establish appropriate mechanisms providing for simplified procedures where necessary, for resolving disputes relating to the property of internally displaced persons.” Article 11(5) goes on to provide that “States Parties shall take all appropriate measures, whenever possible, to restore the lands of communities with special dependency and attachment to such lands upon the communities’ return, reintegration, and reinsertion.”
These provisions nod in the direction of the 2010 decision from the African Commission on Human and Peoples Rights in the Endorois case, and reflect a relatively narrow interpretation of IDPs’ rights to reclaim lost lands. The property dispute resolution mechanisms that States are encouraged to establish under Article 11(4) are not explicitly enjoined to restore property to displaced claimants, tacitly recognizing that in some cases other groups (for example, longstanding secondary occupants) may also have a legitimate claim to the land. States Parties’ specific duty to “restore lands” comes into play only where there is “special dependency and attachment”. Even this obligation is couched in limited terms, as “appropriate measures” are only required “whenever possible”.
On a first reading, this may seem like a step back for the protection of IDPs’ HLP rights. However, a closer inspection of the provisions demonstrates that the scope for remedies – including restitution – extends well beyond this provision, and indeed beyond what is articulated in the Guiding Principles and the Pinheiro Principles. Granted, Article 12 of the Kampala Convention, which focuses on remedies for displacement, does not refer to housing, land or property. Instead, it underscores the individuals affected, and the harms that they may have suffered, regardless of whether these harms are manifested in the dispossession of property. It moves beyond the individual’s right to restitution, and instead demands the more expansive corollary: an obligation to remedy.
Article 12 opens by stating simply that States “shall provide persons affected by displacement with effective remedies”. This general obligation reflects the well-entrenched human rights law requirement that there be effective remedies when human rights are violated (see, for example, Article 2(3) of the International Covenant on Civil and Political Rights). It continues by providing that these remedies may include “compensation” as well as “other forms of reparations”.
Most importantly, Article 12 provides that these remedies will be “for damage incurred as a result of displacement, in accordance with international standards.” Framed in this way, the type of damage is open-ended, and may well include dispossession of real or personal property (including occupancy rights and tenure) or indeed, physical and mental harm. Certainly, where there is any breach of the Convention, these articles do not exclude the possibility for redress. This opens up the potential for remedies for displacement in itself, for violent treatment, or for discrimination, or any other breach of human rights that is prohibited under the Kampala Convention and other instruments. Article 12(3) for example, provides that reparations shall be payable for damages incurred when a state merely “refrains from protecting and assisting” IDPs in the event of a natural disaster.
In a particularly progressive move, States may also be liable to provide effective remedies even when they had no hand in the dispossession or damage incurred. The Pinheiro Principles, for example, limit the scope of state liability to situations in which persons are “arbitrarily” or “unlawfully” dispossessed. No such limitations are applied in Kampala; remedies may be sought by any person “affected by displacement”, even in cases where the displacement occurs because of natural disasters or for any other reason outside the state’s control. Importantly, this wording suggests that in addition to IDPs themselves, other groups affected by displacement such as host and return communities may also be entitled to redress.
This approach has theoretical as well as practical significance. For example, following the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Series Violations of International Humanitarian Law, the Kampala Convention challenges the conventional designation of restitution as the “preferred remedy” for violations of human rights. (In contrast, the Pinheiro Principles identify restitution as “the preferred remedy” while the Guiding Principles indicate that compensation or other forms of just reparation should be pursued “where recovery of such property and possessions is not possible.”)
This has important implications for the link that is often made between restitution as the “preferred” remedy for displacement, and return as the “preferred” solution to displacement. While return is in many cases desirable and should be an option for IDPs, it is important that remedies for displacement open up a range of choices for IDPs regarding the resolution of their displacement, rather than concertedly focusing on a particular solution, such as return, at the expense of other options. By putting restitution, compensation and other remedies on level footing, the Kampala Convention’s provisions on redress reinforce the notion, expressed in Article 11, that IDPs should be able to make a free choice between voluntary return, location integration or relocation as equal alternatives.
The Kampala Convention rejects a narrow focus on the restitution of housing, land and property rights, and offers a more pragmatic, contextually appropriate approach to remedying loss than we have seen in previous instruments. Once it comes into effect, the goal must be to ensure that remedies are in fact made available to those affected by displacement. Given that IDPs in Africa and around the world have long lacked access to effective remedies, the magnitude of this challenge should not be underestimated.