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Regionalizing Protection: AU and ASEAN Responses to Mass Atrocity Crimes against Internally Displaced Persons

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Abstract

Forcible displacement can constitute a mass atrocity crime. This is something that is considered within the non-binding Guiding Principles on Internal Displacement. Efforts to implement the Guiding Principles at the regional level suggest one path to implement stronger legal protections for internally displaced persons (IDPs), in particular, against mass atrocity crimes. These regional processes, however, can vary in remarkable ways. In the African Union, the Kampala Convention has brought the Guiding Principles and protections against mass atrocity crimes directed at IDPs into regional hard law; it also includes robust implementation and enforcement mechanisms. At this stage, however, these mechanisms remain anticipatory rather than effective; consequently international assistance will be vital to entrench the rights anchored in the Convention. By contrast, ASEAN has introduced no overt protections for IDPs. However, its developing legal human rights framework through the ASEAN Declaration of Human Rights, coupled with the Association’s response to the Rohingya IDP crisis in Myanmar, suggests that a policy-focused change, while incremental, may be happening.
Regionalizing Protection:
AU and ASEAN responses to Mass Atrocity Crimes against
Internally Displaced Persons
Abstract
Forcible displacement can constitute a mass atrocity crime. This is something that is
considered within the non-binding Guiding Principles on Internal Displacement. Efforts to
implement the Guiding Principles at the regional level suggest one path to implement
stronger legal protections for internally displaced persons (IDPs), in particular, against mass
atrocity crimes. These regional processes, however, can vary in remarkable ways. In the
African Union, the Kampala Convention has brought the Guiding Principles and protections
against mass atrocity crimes directed at IDPs into regional hard law; it also includes robust
implementation and enforcement mechanisms. At this stage, however, these mechanisms
remain anticipatory rather than effective; consequently international assistance will be vital to
entrench the rights anchored in the Convention. By contrast, ASEAN has introduced no overt
protections for IDPs. However, its developing legal human rights framework through the
ASEAN Declaration of Human Rights, coupled with the Association’s response to the
Rohingya IDP crisis in Myanmar, suggests that a policy-focused change, while incremental,
may be happening.
Key Words: Internally Displaced Persons (IDPs), Responsibility to Protect (RtoP), Guiding
Principles on Internal Displacement, Kampala Convention, Mass Atrocity Crimes.
1
Introduction1
In his 2011 Cyril Foster Lecture at the University of Oxford, UN Secretary-General Ban Ki-
Moon argued that human protection was an essential component of the global agenda.2 As
Hunt notes in this issue, human protection refers to the ‘protection of civilians from human
rights abuses, inside and outside of armed conflicts, with a particular focus on mass atrocity
crimes – genocide, war crimes, crimes against humanity and ethnic cleansing.’ A critical issue
for human protection, however, is how the international community should respond to people
who are forcibly displaced due to mass atrocity crimes.
Three points with respect to forcible displacement are critical. The first is that the overall
growth in forced migrants over the past decade has been substantial. At the end of 2014, the
United Nations High Commission for Refugees (UNHCR) found that globally there were
59.5 million people, including 19.5 million refugees and 38.2 million internally displaced
persons.3 Second, many of the crises producing forced migrants are clearly linked with mass
atrocity crimes. The Syrian conflict, in which the civilian population face mass atrocity
crimes committed both by state security forces and affiliated militias, and by some armed
opposition groups, has created 4.1 million refugees and over 6.6 million IDPs.4 At the same
time, Eritrea had produced 330,000 refugees by the end of 2014.5 There, a UN Human Rights
1 My thanks to Vickie Frater and Rebekkah Markey-Towler for research assistance, and to Sara Davies, Charles
Hunt, and Noel Morada for comments. A portion of this work has been supported by an Australian Research
Council Discovery Award (DP150102453).
2 Ban Ki-moon, ‘Cyril Foster Lecture at Oxford University: “Human Protection and the 21 st Century United
Nations,” 2 Feb 2011. Available at: http://www.un.org/apps/news/infocus/sgspeeches/search_ full.asp?
statID=1064.
3 This includes 14.4 million refugees under UNHCR’s mandate, and 5.1 million Palestinian refugees under the
mandate of the United Nations Relief Works Agency (UNRWA) (UNHCR 2015: 2).
4 Global Centre for the Responsibility to Protect, ‘Populations at Risk: Syria’, (2015). Available at:
http://www.globalr2p.org/regions/syria. IDMC, ‘Syria IDP Figures Analysis,’ December 2015. Available at:
http://www.internal-displacement.org/middle-east-and-north-africa/syria/figures-analysis.
5 UNHCR ‘World at War: UNHCR Global Trends, Forced Displacement in 2014’ (Geneva: UNHCR). Available
at: http://unhcr.org/556725e69.html, 50.
2
Council Commission of Inquiry on Human Rights found that ‘systematic, widespread and
gross human rights violations have been and are being committed in Eritrea under the
authority of the Government. Some of these violations may constitute crimes against
humanity.’6
The third is that forced displacement can directly qualify as a mass atrocity crime given two
factors: the deliberate intent of the perpetrators, and the widespread or systematic nature of
their acts. Thus, the Responsibility to Protect (RtoP) doctrine provides one potential form of
response. It establishes that each state as well as the international community as a whole has
the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and
crimes against humanity.7 As I argue below, ethnic cleansing has the clearest linkage to forced
displacement but is the only mass atrocity crime adopted within the World Summit Outcome
Declaration (WSOD) which does not have explicit grounding in current international treaty
law. Forced deportation or transfers can qualify as either as a war crime or crime against
humanity, while forcible transfer of children can qualify as an act of genocide. Further, the
Secretary-General’s 2009 Report8 directly drew linkages between forced displacement and
the RtoP, not only noting that asylum could provide one route for protection from mass
atrocity crimes, but that the protection of refugees and internally displaced person was a
direct goal of the RtoP.9
6 UN Human Rights Council ‘Report of the Commission of Inquiry on Human Rights in Eritrea’, A/HRC/29/42,
4 Jun 2015. Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G15/114/50/PDF/G1511450 .pdf?
OpenElement, 1.
7 United Nations General Assembly, ‘Resolution 60/1: World Summit Outcome,’ (New York: United Nations,
2005); ‘Implementing the Responsibility to Protect: Report of the Secretary-General,’ (New York: United
Nations, 2009), 17.
8 ‘Implementing the Responsibility to Protect: Report of the Secretary-General,’ 17.
9 Ibid., 29.
3
But how do we ensure that such protections are not just words on paper? Much of the current
focus of the UN is on Pillars One and Two how states can protect their own populations
from mass atrocities, and how the international community can assist states to uphold that
responsibility. Therefore, providing practical, on the ground protection to the displaced and to
civilians who may fall victim to mass atrocity crimes is an important area of focus.
Historically, asylum was a critical way for civilians to flee mass atrocities, to leave the state
where the atrocities were being committed.10 And yet the 1951 Refugee Convention is an
inadequate tool to respond to mass atrocities. It is focused on individualized state-based
persecution, not on persecution by non-state actors, on flight caused by generalized violence,
or flight created through mass atrocities. Further, while IDPs find themselves in situations
analogous to those of refugees – coercively displaced from their own homes – unlike refugees
they do not have clear international protections since they have not left their own state.
Instead, they remain under the responsibility of their own state, a state which may be unable
or unwilling to protect them.
Responding to IDPs required a shift in contemporary understandings of sovereignty, a shift
which has been integral to the emergence of the RtoP. Francis Deng, the first Representative
of the UN Secretary-General for Internally Displaced Persons, coined the term ‘sovereignty
as responsibility’ to justify international action in such circumstances. As he argued, for a
government to be legitimate it must provide a certain level of protection for its population.
Most governments do so, and if unable, they call upon the international community to assist.
However:
10 Brian Barbour and Brian Gorlick, ‘Embracing the "Responsibility to Protect": A Repertoire of Measures
Including Asylum for Potential Victims,’ International Journal of Refugee Law 20, no. 4 (2008).
4
Under exceptional circumstances when governments fail to discharge this
responsibility and masses of their citizens become threatened with severe suffering
and death, the international community should step in to provide the needed
protection and assistance, even if the government of a state has not requested aid.11
This formulation, Evans notes, became ‘a central conceptual underpinning of the
responsibility to protect norm as it finally emerged.’12
Critically, the issue of IDP protection has been recognized through the 1998 Guiding
Principles on International Displacement.13 While non-binding, the Guiding Principles use as
their foundation existing international human rights law, humanitarian law, and refugee law.14
They introduce a clear right against arbitrary displacement, one that draws on the right
against forcible transfers anchored in crimes against humanity and war crimes. The Guiding
Principles have been brought into domestic legislation and policies by a range of states with
current IDP situations, including in both Africa and the Asia-Pacific.
More notably, however, have been recent developments in IDP protection at the regional level
through both the African Union (AU) and the Association of South East Asian Nations
(ASEAN). Here, the AU appears to have a much stronger pattern of practice, most notably
through the ratification of the Kampala Convention, which includes strong protections for
IDPs and rights against arbitrary displacement. Introducing such provisions into regional law
11 Francis Mading Deng, ‘Promoting Responsible Sovereignty in Africa,’ in African Reckoning: A Quest for
Good Governance, ed. Francis Mading Deng and Terrence Lyons (Washington: The Brookings Institution,
1998), 3.
12 Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington:
Brookings Institution Press, 2008). 37; see also Luke Glanville, Sovereignty and the Responsibility to Protect: A
New History (Chicago: University of Chicago Press, 2014). 174-76.
13 Office for the Coordination of Humanitarian Affairs, ‘Guiding Principles on Internal Displacement,’ (New
York: UNOCHA, 1999).
14 Walter Kälin, ‘The Guiding Principles on Internal Displacement as International Minimum Standard and
Protection Tool,’ Refugee Survey Quarterly 24, no. 3 (2005): 29-30.
5
provide an important safeguard on domestic standards along with clear implementation and
enforcement standards.
This appears to represent a significant variation in practice across regions; while the Asia-
Pacific has similar numbers of IDP situations and a similar record of introducing domestic
protections, there has been no recognition of IDP issues at the regional level or sub-regional
level. This is misleading in two ways, however. First, while the Kampala Convention
introduces clear standards on paper, its actual implementation continues to lag. Second, while
neither ASEAN nor other sub-regional organizations have taken steps to legalize IDP
protections, ASEAN does appear to be entrenching a clear policy response towards IDPs,
driven by the Rohingya situation in Myanmar. This suggests that regional protections for
IDPs – and against mass atrocity crimes more generally – are an important step forward. As
they develop, however, they can take much different forms.
Forced Displacement as an International Crime
There are specific forms of forced displacement which cross the line into mass atrocity
crimes and hence fall within the RtoP doctrine. Ethnic cleansing is included as a specific
form of mass atrocity within the WSOD but is the least clearly elaborated crime in
international law. By contrast, most forms of forced displacement which would qualify as
international crimes would be considered as either war crimes or crimes against humanity.
This reflects the historical origins of these crimes. The Charter for the Nuremberg Trials, in
defining both war crimes and crimes against humanity,15 specifically established that
15 There is debate as to whether the Nuremberg Charter created a new crime, or articulated one already
established in customary international law. Darryl Robinson, ‘Defining "Crimes against Humanity" at the Rome
Conference,’ American Journal of International Law (1999): 44.
6
‘deportation to slave labour’ constituted a violation of the laws or customs of war, and hence
a war crime. Deportation committed against any civilian population, either before or during
the war, and persecutions on political, racial or religious grounds in execution or connected to
any other crime constituted crimes against humanity.16
Further, the Genocide Convention explicitly includes the forcible transfer of children from
one group to another as well as acts which are ‘deliberately inflicting on the groups
conditions of life calculated to bring about its physical destruction in whole or in part.’17
From this, we could infer that forcible displacement more broadly, particularly if used in such
a way, can also constitute genocide. 18 How wide this category is, however, is unclear.19
The Geneva Conventions also ‘expressly forbid the forced displacement of civilians and
subsequent resettlement of the occupying power’s own population in occupied territory.’20
Here, too, there are questions of what specific protections are warranted, and as Jacques
notes, ‘diverging interpretations abound.’21 The ICRC has also concluded that there are also
16 Charter of the International Military Tribunal, Art 6.
17 Convention on the Prevention and Punishment of the Crime of Genocide, Art 2(e).
18 Grant Dawson and Sonia Farber, Forcible Displacement Throughout the Ages: Towards an International
Convention for the Prevention and Punishment of the Crime of Forcible Displacement (Martinus Nijhoff
Publishers, 2012). 57.
19 Machteld Boot, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject
Matter Jurisdiction of the International Criminal Court, vol. 12 (Intersentia nv, 2002). 451.
20 Mélanie Jacques, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons
under International Humanitarian Law (Cambridge University Press, 2012). 79. The Geneva Convention IV,
Art. 49 notes ‘Individual or mass forcible transfers, as well as deportations of protected persons from occupied
territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited,
regardless of their motive’ and Art 85 precludes an Occupying Power from transferring parts of its own civilian
population into the territory it occupies. Article 17 of the Additional Protocol II, which deals with non-
international armed conflicts, provides that: ‘Civilians shall not be compelled to leave their own territory for
reasons connected with the conflict.’ see Jean-Marie Henckaerts, Louise Doswald-Beck, and Carolin
Alvermann, Customary International Humanitarian Law: Volume 1, Rules, vol. 1 (Cambridge University Press,
2005). 458-50.
21 Jacques, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under
International Humanitarian Law: 79.
7
customary international legal protections due to civilian populations of occupied territory,
including that they cannot be deported or forcibly transferred in either international or non-
international armed conflicts unless ‘the security of the civilians involved or imperative
military reasons so demand.’22
The 1951 Convention Relating to the Status of Refugees establishes that a refugee is a person
who has fled ‘owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion’ and is both outside
their country of nationality and unable or, owing to such fear, unwilling to avail themselves of
the protection of that country.23 But while the Convention provides rights for refugees, it does
not place any obligation on governments to refrain from engaging in actions that would create
refugees.24
The 1990s saw the new term ‘ethnic cleansing’ introduced into the lexicon in which
significant violence was used to drive people of a specific ethnic group from a particular
territory. As Jackson-Preece notes, while this may have been a new term, it had a long history
in practice.25 But what form of crime was ethnic cleansing? At least initially, it was equated
with genocide, such as in a 1992 General Assembly resolution.26 That same year, the UN
Special Rapporteur on the Situation of Human Rights in the Territory of the Former
Yugoslavia, Tadeusz Mazowiecki, provided a clearer definition of as ‘the elimination by the
22 Henckaerts, Doswald-Beck, and Alvermann, Customary International Humanitarian Law: Volume 1, Rules,
1: 457.
23 Article 1 A.(2), Convention Relating to the Status of Refugees.
24 Dawson and Farber, Forcible Displacement Throughout the Ages: Towards an International Convention for
the Prevention and Punishment of the Crime of Forcible Displacement: 59.
25 Jennifer Jackson Preece, ‘Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State
Practices and Evolving Legal Norms,’ Human Rights Quarterly 20, no. 4 (1998): 818.
8
ethnic group exerting control over a given territory of members of other ethnic groups.’27
Given the conflict situation, he suggested that practices of ethnic cleansing constituted both
war crimes as well as human rights violations.28 A Commission of Experts established by the
Security Council subsequently defined ethnic cleansing as ‘a purposeful policy designed by
one ethnic or religious group to remove by violent and terror-inspiring means the civilian
population of another ethnic or religious group from certain geographic areas.’29
Ethnic cleansing has not been recognized as an international crime in law in its own right.30
However, the term has led to important shifts in how other mass atrocities are understood.
Thus, it was not explicitly included as a crime within the Statute of the International Criminal
Tribunal for the former Yugoslavia. Instead, the Statute provided that the International
Tribunal ‘shall have the power to prosecute persons responsible for the following crimes
when committed in armed conflict, whether international or internal in character, and directed
against any civilian population: …(d) deportation (h) persecutions on political, racial and
religious grounds (i) other inhumane acts.’31
26 The Situation in Bosnia and Herzegovina, G.A. Res. 121, adopted on Dec. 18 1992, U.N. GAOR, 47th Sess.,
U.N. Doc. A/RES/47/121 (1993). William A Schabas, ‘Problems of International Codification-Were the
Atrocities in Cambodia and Kosovo Genocide,’ New England Law Review. 35(2000): 294. Boot suggests that
the term may have been used in this case precisely because it was not legally defined, whereas the use of
Genocide ‘would trigger states’ obligations deriving from the Genocide Convention.’ Boot, Genocide, Crimes
against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the
International Criminal Court, 12: 447.
27 T Mazowiecki, Report on the Situation in the Territory of the Former Yugoslavia to the 47th Session of the
Security Council and the General Assembly, A/47/666, 17 Nov 1992, 6. See also Jackson Preece, ‘Ethnic
Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms.’
28 T Mazowiecki, Report on the Situation in the Territory of the Former Yugoslavia to the 47th Session of the
Security Council and the General Assembly, A/47/666, 17 Nov 1992, 16.
29 UN Security Council ‘Letter dated 24 May 1994 from the Secretary-General to the President of the Security
Council’ (S/1994/674), 27 May 1994, 33.
30 Erin D Mooney, ‘Something Old, Something New, Something Borrowed… Something Blue? The Protection
Potential of a Marriage of Concepts between R2P and IDP Protection,’ Global Responsibility to Protect 2, no. 1
(2010): 65.
31 United Nations, ‘Updated Statute of the International Criminal Tribunal for the Former Yugoslavia’
September 2009, http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf, accessed 18 May
2015.
9
Thus, the 1999 indictment against Slobodan Milosevic noted: ‘the unlawful deportation and
forcible transfer of thousands of Kosovo Albanians from their homes in Kosovo involved
well-planned and co-ordinated efforts by the leaders of the FRY and Serbia, and forces of the
FRY and Serbia, all acting in concert.’32 As Schabas notes, the allusion to ethnic cleansing
here ‘implies that this too was a crime against humanity and not genocide.’33 He adds that the
‘principal act of genocide listed in the Convention is killing… Herein lies the fundamental
difference with ethnic cleansing, which generally involves killing, but with the intent to effect
forced migration from a territory.’34
The International Court of Justice has taken a similar view. The Court established that acts
described as “ethnic cleansing” may constitute genocide ‘if they are such as to be
characterized as, for example, “deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part… [and] provided such
action is carried out with the necessary specific intent.”’35 However, the Court noted that in
the context of the Genocide Convention, ‘the term “ethnic cleansing” has no legal
significance of its own. Thus, not surprisingly perhaps, the International Committee of the
Red Cross has determined ethnic cleansing to be a “composite war crime” as it includes a
range of acts which are prohibited under the Geneva Conventions, their Protocols, and in
customary international law.’36
32 National Criminal Tribunal for Former Yugoslavia (Prosecutor v. Milosevic), May 22, 1999 (Indictment No.
IT-99-37-I).
33 Schabas, ‘Problems of International Codification,’ 294.
34 Ibid., 295.
35 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime
of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgement, 26 February 2007,
123.
10
Finally, the Rome Statute of the International Criminal Court provides the clearest statement
on this issue. While not including ethnic cleansing, it includes ‘deportation or forcible
transfer of population’ as a crime against humanity ‘when committed as part of a widespread
or systematic attack directed against any civilian population, with knowledge of the attack.’37
There is no requirement that armed conflict needs to be present, nor, except with respect to
the crime of persecution, that the crime requires a discriminatory motive. For it to be
widespread requires it to be a large-scale action involving a substantial number of victims,
while for it to be systematic requires a high degree of orchestration and planning.38
The Rome Statute defines deportation or forcible transfer as ‘forced displacement of the
persons concerned by expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international law.’39 However, the
distinction between deportation and forcible transfer is not necessarily clear. Bassiouni notes
that ‘deportation is the forced removal of people from one country to another while
population transfer applies to compulsory movement of people from one area to another
within the same state.’40 By contrast, Meindersma suggests population transfers should be
viewed as any:
deliberate policy, with the direct or indirect involvement of the government, to move
people – currently under its jurisdiction – into or away from a certain area, having the
purpose or effect of compelling people to leave their territory or accept the
implantation of (alien) settlers into that territory, aimed at transforming the
demographic composition or political status of the territory concerned… this
36 Henckaerts, Doswald-Beck, and Alvermann, Customary International Humanitarian Law: Volume 1, Rules,
1: 603; Mooney, ‘Something Old, Something New, Something Borrowed… Something Blue? The Protection
Potential of a Marriage of Concepts between R2P and IDP Protection,’ 65.
37 Rome Statute of the International Criminal Court Article 7(1).
38 Robinson, ‘Defining "Crimes against Humanity" at the Rome Conference,’ 45-6.
39 Rome Statute of the International Criminal Court Article 7(1)
40 M. Cherif Bassiouni, ‘Crimes against Humanity in International Criminal Law,’ (Dordrecht, Boston-London,
1999), 312.
11
description does not create the distinction between movement across international
borders or within the State…41
Jurisprudence at the ICTY, in the Stakid Appeal, supports the former interpretation, but only
with respect to clear borders. In that case, the Appeals Chamber noted that deportation can
include being forced to cross either de jure or de facto borders, which does not include
‘constantly changing frontlines.’42 For other cases where neither de jure or de facto borders
were crossed, the Appeals Chamber concluded that ‘punishment for such forcible transfers
may be assured by the adoption of proper pleading practices in the Prosecution’s
indictments.’43
From this, it is clear that engaging in either widespread or systematic acts with the goal to
deliberately displace a civilian population, irrespective of their status as nationals, qualifies as
a crime against humanity under the Rome Statute. Deliberately displacing them across de
jure or de facto borders qualifies as deportation, while deliberately displacing them within a
state’s territory qualifies as forcible transfer. Such a reading subsumes ethnic cleansing as a
crime against humanity, but this reflects practice, if not law, since the conflict in the former
Yugoslavia. The Rome Statute, therefore, also provides one route for the international
community to ensure protections for the displaced and would-be displaced against these
crimes: through the mechanism of individual prosecution by the International Criminal Court.
41 Christa Meindersma, ‘Legal Issues Surrounding Population Transfers in Conflict Situations,’ Netherlands
International Law Review 41, no. 1 (1994): 33.
42 In the case of Milomir Stakid (Case No. IT-97-24-A, Appeal Judgement, 22 March 2006), 92, 99, the Appeals
Chamber noted that ‘the actus reus of deportation is the forced displacement of persons by expulsion or other
forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain
circumstances, a de facto border, without grounds permitted under international law.’ The Appeals judgement
was specifically challenging an argument made by the Trial Chamber that deportation could encompass
displacements across ‘constantly changing frontlines.’ Stakid (Case No. IT-97-24-A, Appeal Judgement), 99.
43 Stakid (Case No. IT-97-24-A, Appeal Judgement), 99.
12
Implementing Protections Against Deportation and Forced Transfer
The ICC, however, represents a limited tool, one which can only prosecute a small number of
cases and one in which prosecutions may occur years after violations occur. As noted in the
introduction, advocates for the RtoP doctrine are increasingly focused on how Pillars One and
Two can be used to provide robust protections using regional and domestic mechanisms. As
the Secretary-General noted in his 2011 Report, ‘the development of regional and sub-
regional arrangements has varied markedly from region to region, whether measured in terms
of their scope, capacity, or authority.’44 He suggests that ‘regional and sub-regional
arrangements can encourage governments to recognize their obligations under relevant
international conventions and to identify and resolve sources of friction within their societies
before they lead to violence or atrocity crimes.’45
In ensuring the protection of the displaced from mass atrocities, the Guiding Principles on
Internal Displacement can play a key role. As noted in the introduction, while the Principles
are non-binding, they are based on international human rights law, international humanitarian
law, and analogous refugee law.46 The principles define who IDPs are, establish that they
continue to possess legal rights in spite of being displaced, and acknowledge that the state
and international community both hold responsibilities towards IDPs. There is substantial
evidence that the Principles are widely accepted at the international, regional, and state levels,
44 United Nations, ‘The Role of Regional and Sub-Regional Arrangements in Implementing the Responsibility
to Protect: Report of the Secretary-General,’ (New York: United Nations, 2011), 3.
45 Ibid., 5.
46 Kälin, ‘The Guiding Principles on Internal Displacement as International Minimum Standard and Protection
Tool,’ 29-30.
13
where a number of states have sought to implement domestic policies or legislation to protect
their own internally displaced populations in line with the principles.47
Notably, in Principle 6, the Guiding Principles note:
Every human being shall have the right to be protected against being arbitrarily
displaced from his or her home or place of habitual residence.
2. The prohibition of arbitrary displacement includes displacement:
(a) When it is based on policies of apartheid, “ethnic cleansing” or similar practices
aimed at or resulting in alteration of the ethnic, religious or racial composition of the
affected population;
(b) In situations of armed conflict, unless the security of the civilians involved or
imperative military reasons so demand;
(c) In cases of large-scale development projects that are not justified by compelling
and over-riding public interests;
(d) In cases of disasters, unless the safety and health of those affected requires their
evacuation; and
(e) When it is used as a collective punishment.48
Kälin recognizes that ‘an explicit prohibition of “ethnic cleansing” has not yet been
adopted…’ but that this principle reflects existing international law, including that “ethnic
cleansing” may constitute genocide.49 Further, he notes ‘forced population transfers for the
purpose of ‘ethnic cleansing’ and similar purposes can never be justified under international
law and, therefore, always have to be considered arbitrary.’50 Hence, the right against
arbitrary displacement established in Principle 6, and particularly in elements 6 (2) (a), (b),
and (e), clearly reflects existing legal prohibitions against mass atrocities. Further, it applies
47 Author
48 Office for the Coordination of Humanitarian Affairs, ‘Guiding Principles on Internal Displacement,’
Principle 6.
49 Walter Kälin, Guiding Principles on Internal Displacement: Annotations 2nd ed. (Washington D.C.: The
American Society of Internationa Law, 2008). 30-31.
50 Ibid., 31; See also Brookings-Bern Project on Internal Displacement, ‘Protecting Internally Displaced
Persons: A Manual for Law and Policymakers,’ (Washington, D.C.: Brookings Institution, 2008), 45.
14
protection against these prohibitions not only to the internally displaced, but to all persons
who may become internally displaced, whether through these crimes or through other acts.51
The Guiding Principles, like the RtoP doctrine itself, is soft law and, while it has a strong
basis in international law, it is unlikely to lead to an international convention. How, then, can
we implement such measures? In other work, I have defined implementation asa parallel
process to institutionalization which draws attention to the steps necessary to introduce the
new international norm’s precepts into formal legal and policy mechanisms within a state or
organization in order to routinize compliance.’52 The RtoP doctrine reflects a bundle of
different norms, or a regime, in which a range of existing international norms around mass
atrocities have been linked together by a new norm requiring the United Nations Security
Council to consider its response to mass atrocity on a case by case basis. Welsh notes that
RtoP does not require a particular type of action to take upon its invocation. The response,
rather, ‘will depend on a host of factors, including other important international norms.’53
Instead, she suggests the R2P demands ‘a duty of conduct’ by members of the international
community: ‘to identify when atrocity crimes are being committed (or when there is threat of
commission) and to deliberate on how the three-pillar framework might apply.’54
51 Other soft law instruments for IDPs offer similar protections. The International Law Association’s ‘Draft
Declaration of International Law Principles on Internally Displaced Persons’ (2000), 11, notes in Article 4(3)
that ‘Measures aimed at deliberate alteration of the demographic composition of a given region (e.g., “ethnic
cleansing”) or at [sic] genocide are strictly prohibited.’
52 Alexander Betts and Phil Orchard, ‘Introduction: The Normative Institutionalization-Implementation Gap,’ in
Implementation and World Politics: How International Norms Change Practice, ed. Alexander Betts and Phil
Orchard (Oxford: Oxford University Press, 2014), 2.
53 Jennifer Welsh, ‘Implementing the "Responsibility to Protect": Catalyzing Debate and Building Capacity,’ in
Implementation and World Politics, 136.
54 Ibid.
15
Both Africa and the Asia-Pacific have similar numbers of countries with IDP situations as of
2014 - 21 African states and 25 Asia-Pacific states. A range of these states have introduced or
are in the process of adopting their own domestic policies, which frequently include direct
references to the illegality of arbitrary displacement under international law. To give two
recent examples, Kenya’s 2012 Act55 establishes that, while subject to the Kenyan
Constitution, the provisions of the Great Lakes Protocol and of the Guiding Principles ‘shall
apply to all internally displaced persons in Kenya.’56 The government accepts a duty to both
prevent internal displacement, and to ‘protect every human being against arbitrary
displacement.’57 Further, the Act establishes that ‘no person shall cause, aid or abet arbitrary
displacement through acts that amount to genocide, a crime against humanity or a war crime
in accordance with international law and shall be punished in accordance with the
International Crimes Act, 2008.’58
In 2013, the Congress of the Philippines passed an Act to protect IDPs,59 however, it was
vetoed by President Benigno Aquino III over concerns that powers accorded to the
Commission on Human Rights to determine damages incurred against IDPs violated the
Commission’s powers under the Constitution.60 The draft Act included clear language that
arbitrary internal displacement was prohibited, including acts ‘(a) based on policies of
apartheid, ‘ethnic cleansing’ or similar practices aimed at or resulting in altering the ethnic,
55 Republic of Kenya, ‘The Prevention, Protection and Assistance to Internally Displaced Persons and Affected
Communities Act, 2012’, 31 Dec 2012.
56 Ibid., II.3.
57 Ibid., II. 5(2), 6(1).
58 Ibid., VI 23(1). The International Crimes Act brings into force in Kenya the Rome Statute. See International
Committee of the Red Cross IHL National Implementation- International Crimes Act, 2008’
https://www.icrc.org/applic/ihl/ihl-nat.nsf/6fa4d35e5e3025394125673e00508143/ 57d55469fc1bd9
c9c12576ce003cd1f2?openDocument, accessed 5 May 2015.
59 Republic of the Philippines, Congress of the Philippines ‘An Act Protecting the Rights of Internally
Displaced Persons, Providing Penalties for Violations Thereof and for Other Purposes’ 5 Feb 2013.
16
religious or racial composition of the affected population; (b) in situations of armed conflict,
unless the security of civilians is involved;… (e) when used as a form of collective
punishment.’61
But have these policies been adequately implemented? This is an important question - as
UNHCR has argued, ‘international, regional and national standards for IDPs are meaningful
only if effectively implemented in practice.’62 And yet, in both regions the passage of such
laws or policies has slowed down. As I detail in Table 1 below, in Africa, only eight countries
have created IDP laws or policies at the domestic level, and only one new policy has been
introduced in the last five years. In Asia, by contrast, a greater number of states have adopted
laws or policies eleven states currently have policies, and one more has a policy in
preparation. Further, I have noted elsewhere that as documents, these laws and policies
actually do a relatively poor job of reflecting the Guiding Principles. Across twenty-nine
domestic policies introduced globally:
Only seventeen explicitly mention the guiding principles, and only seven explicitly
endorse its IDP definition. In fact, most of these laws and policies either do not
provide a definition or introduce a more restrictive definition than that of the
principles.63
60 IDMC ‘A Bend in the Road is Not the End of the Road- The Veto of the IDP Act in the Philippines’ 13 June
2013 http://www.internal-displacement.org/assets/library/Asia/Philippines/pdf/IDMC-NRC-public-statement-
Philippines-13-june-2013.pdf (Accessed 14 May 2013). A revised version was approved by the Philippines
House of Representatives in 2014, but has not been passed by the Senate. Republic of the Philippines House of
Representatives ‘Proposed Internal Displacement Act of 2014 approved on 2nd Reading’
http://www.congress.gov.ph/press/details.php?pressid=8085 Accessed 14 May 2015; Llanesca Panti ‘Bill on
Displaced Persons Gathers Dust in Congress’, The Manila Times, 14 March 2015
http://www.manilatimes.net/bill-on-displaced-persons-gathers-dust-in-congress/169395/, accessed 14 May 2015.
61 Op cit. Republic of the Philippines ‘An Act Protecting the Rights of Internally Displaced Persons’ Section 6.
62 UNHCR, ‘Comitments for Protection and Solution in Osce Region,’ (Geneva: UNHCR, 2013), 7.
63 Phil Orchard, 'Implementing a Global Internally Displaced Persons Protection Regime,' in Implementation
and World Politics, 112; see also Susan Carr, ‘From Theory to Practice: National and Regional Application of
the Guiding Principles,’ International Journal of Refugee Law 21, no. 1 (2009): 39.
17
Similarly, Beyani notes that these domestic frameworksvary in scope, the guarantees of
protection and assistance to internally displaced persons, and the coverage of relevant
issues.’64 Weaknesses in these frameworks can be balanced by regional and international law.
While the Guiding Principles as soft law have no formal enforcement provisions, Africa as a
region has taken two important steps forward to bring the Guiding Principles into regional
hard law, first through the 2006 Great Lakes Protocol on Protection and Assistance to
Internally Displaced Persons, and more recently through the African Union’s 2009
Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the
Kampala Convention), which entered into force in 2012. Thus, Africa appears to have taken a
leadership position in introducing clear rights against arbitrary displacement and other rights
for the internally displaced.
By contrast, in the Asia-Pacific there have been few moves at the regional level, either in
formal multilateral regional organizations such as the Association of South East Asian
Nations (ASEAN), or less formal multilateral initiatives. UNHCR has noted that with respect
to IDP protection in the Asia-Pacific, regional processes have significantly lagged behind
domestic legislative and policy initiatives.65 Prior to this year, ASEAN, for example, had only
made a commitment to IDPs in relation to a narrow commitment to strengthen ASEAN
humanitarian assistance through the ‘orderly repatriation of refugees/displaced persons and
resettlement of internally displaced persons.’66
64 Human Rights Council, ‘Report of the Special Rapporteur on the Human Rights of Internally Displaced
Persons, Chaloka Beyani’, 4 April 2014, A/HRC/26/33, 16.
65 UNHCR, ‘Overview of UNHCR's Operational Strategies in the Asia-Pacific Region,’ (Geneva: UNHCR,
2013), 1.
66 ASEAN, ‘Asean Security Community Plan of Action,’ (Vientiane, Laos: ASEAN, 2004).
18
Other Asia-Pacific regional processes have also neglected IDPs. The Central Asian Almaty
Process for Refugee Protection and International Migration does not explicitly address IDP
protection, even though a number of its members have current IDP situations and they have
committed to the importance of ‘establishing appropriate national legal frameworks’ to ensure
the human rights of migrants.67 The South Asian Association for Regional Cooperation
(SAARC), which includes a number of states with IDP problems, has a Social Charter that
notes that state parties shall endeavor to ensure that ‘internal migration resulting in excessive
population concentration’ should be ‘carefully, diligently and effectively managed.’68
However, ‘the region, with its strong emphasis on state sovereignty and territorial integrity,
considers IDPs to be a domestic matter’69 and the issue is simply not on SAARC’s agenda.
However, neither the African nor the South East Asian case are as clear cut as they appear.
While I argue below that the Kampala Convention has introduced strong legal rights for
IDPs, its implementation has lagged. ASEAN has introduced no overt protections for IDPs.
However, its developing legal human rights framework through the ASEAN Declaration of
Human Rights, coupled with the Association’s response to the Rohingya IDP crisis in
Mynamar, suggests that a regional change, while incremental, may be happening.
Table 1. IDP Regional or National Legislation and Policies in Africa and the Asia-Pacific.70
State Number of
IDPs (2014)*
Nairobi
Protocol
Kampala
Convention
**
National
Legislation or
Policy***
Explicitly cites
Guiding Principles
Definition
Bureaucratic
Role Assigned
Africa
Algeria No recent
67 Ministry of Foreign Affairs of the Republic of Kazakstan, ‘Ministerial Conference on Refugee Protection and
International Migration: The Almaty Process,’ (Almaty Ministry of Foreign Affairs of the Republic of
Kazakstan, 2013), 12.
68 SAARC, ‘Social Charter of the South Asian Association for Regional Cooperation,’
SAARC/SUMMIT.12/SC.29/27, 2004, 9.
69 Menaka Lecamwasam, ‘The Internally Displaced in South Asia: Lessons from Kampala,’ Asia Pacific
Journal on Human Rights and Law, 15 nos. 1&2 (2014): 172; Paula Banerjee, ‘IDP Protection at the National
Level in South Asia,’ Forced Migration Review 18 (2006).
19
figure
Angola No recent
figure
R 2001/2 Yes Yes- New
Burundi 77,600 S S 2001 Yes Yes- New
Central African
Republic
436,300 S R
Chad 8,500 R
Congo 7,800 R
Cote d'Ivoire 300,000 R
Democratic
Republic of the
Congo
2,857,400 S S
Eritrea 10,000
(2008 figure)
S
Ethiopia 396,100 S
Kenya 309,200 S 2012 Yes Yes- New
Liberia 23,000
(2013 figure)
S 2004 Yes Yes- New
Libya 400,000
Mali 86,026 R
Niger 11,000
(2013 figure)
R
Nigeria 1,235,300 R In preparation
Rwanda 0 S R
Senegal 24,000
(2013 figure)
S
Sierra Leone 0 R 2001 Yes Yes
Somalia 1,107,000 S 2014 Yes Yes
South Sudan 1,520,300 S
Sudan 3,100,000 S 2009
Togo 1,500
(2006 figure)
R
Uganda 29,800 S R 2004 Yes Yes
Zimbabwe 36,000
(2013 figure)
R
Total:
21 states 11,871,326
21
(13Ratifications)
8 laws or policies (1 in preparation)
Asia-Pacific
Afghanistan 829,300 2005 Yes Yes
Bangladesh 431,000
India 616,140 2003 Yes-New
70 Source: Adapted from Author. Notes: In cases where more than one piece of legislation or policy has been
passed, year of adoption of the first policy is used. Sources: *IDMC, Latest IDP numbers by country’
(http://www.internal-displacement.org/global-figures, accessed 30 Apr 2015). All figures rounded to the nearest
thousand. Where IDP figures are represented by a range, I have used the low estimate. Some cases where either
no recent figure exists or where a prior IDP situation has ceased are included to reflect policy adoption.
**Internal Displacement Monitoring Centre (IDMC) ‘The Kampala Convention’ (Available at:
http://www.internal-displacement.org/sub-saharan-africa/kampala-convention/) and Elizabeth Ferris and
Chareen Stark, ‘Internal Displacement in West Africa: A Snapshot,’ (Washington D.C.: Brookings-LSE Project
on Internal Displacement 2012), 22-3. This list includes only countries with IDP current or recent IDP
situations; a total of 25 states have ratified and 43 states have signed the Convention. IDMC “IDP Laws and
Policies: A Mapping Tool.’ Available at: http://www.internal-displacement.org/law-and-policy, accessed 4 March
2016. *** Brookings Institution-London School of Economics Project on Internal Displacement, 'National and
Regional Laws and Policies on Internal Displacement Database'. Available at: http://www.brookings.edu
/projects/idp/Laws-andPolicies/idp_policies_ index.aspx.; IDMC “IDP Laws and Policies: A Mapping Tool.’
Available at: http://www.internal-displacement.org/law-and-policy.
20
Indonesia 81,740 2001 No No
Laos 4,500
Myanmar 662,400
Nepal 50,000 2007 Yes Yes-New
Pakistan 274,800 2009 No No
Papua New
Guinea
7,500 In preparation
Philippines 127,000 2013 (vetoed) Yes
Russia 41,000 1993 Yes
Sri Lanka 90,000 2002 Yes- New
Tajikistan 0 1994 Yes
Timor-Leste 900
Turkmenistan 4,000
Uzbekistan 3,400
Yemen 334,100
Total:
17 states 3,557,780
8 laws or policies (2 in preparation)
The Role of Regional IDP Protection in Africa
It should not be surprising that the African Union (AU) has taken the lead in developing new
regional law on this issue. The AU and its predecessor, the Organization for African Union,
have taken steps to introduce both refugee law and a right of intervention beyond
international standards. The OAU’s 1969 Convention Governing the Specific Aspects of
Refugee Problems in Africa provided a wider definition for refugees than either the UN
Refugee Convention or Protocol, adding that:
The term "refugee" shall also apply to every person who, owing to external
aggression, occupation, foreign domination or events seriously disturbing public order
in either part or the whole of his country of origin or nationality, is compelled to leave
his place of habitual residence in order to seek refuge in another place outside his
country of origin or nationality.71
The African Union’s Constitutive Act enshrines a right of intervention to the organization,
noting ‘the right of the Union to intervene in a Member State pursuant to a decision of the
Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes
against humanity.’72
71 Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa,
Article II.
72 African Union, ‘Constitutive Act of the African Union’ 11 July 2000, Art 4(h).
21
The first regional law reflecting the Guiding Principles was the Great Lakes Protocol,73 which
applies to the eleven member states of the Conference. The Protocol uses the IDP definition
from the Guiding Principles and ‘member states undertake to prevent arbitrary displacement
and to eliminate the root causes of displacement.’74 The signatories further accepted that
‘they bear the primary responsibility for the protection of the physical and material safety of
internally displaced persons during flight, in places of displacement, and upon return, or
resettlement elsewhere within the territory of the State.’ They also commit to establishing and
designating government organs to coordinate protection and assistance for IDPs and ‘enact
national legislation to domesticate the Guiding Principles fully.’75
The Kampala Convention reflects a similar expansion of regional rights to the internally
displaced. The Convention acknowledges explicitly the inherent rights of the internally
displaced as laid out in the Guiding Principles, and introduces a range of obligations on its
State parties to refrain from arbitrary displacement and to abide by their responsibilities under
human rights and humanitarian law. This is an important step, as the Kampala Convention
adopts wholesale the definition of internal displacement first provided in the Guiding
Principles as:
persons or groups of persons who have been forced or obliged to flee or to leave their
homes or places of habitual residence, in particular as a result of or in order to avoid
the effects of armed conflict, situations of generalized violence, violations of human
rights or natural or human-made disasters, and who have not crossed an
internationally recognized State border.76
73 ‘Great Lakes Protocol on Protection and Assistance to Internally Displaced Persons’, 2006.
74 Ibid., Art 3(1).
75 Ibid., Art 3(5), 6(1).
76 Kampala Convention, Art. 1(k)
22
Further, it is also applied to non-state armed groups, and notes that ‘Members of Armed
groups shall be held criminally responsible for their acts which violate the rights of internally
displaced persons under international law and national law.’77
But the Kampala Convention also enshrines elements of the Responsibility to Protect. It only
notes the RtoP explicitly in its preamble, with state parties ‘affirming our primary
responsibility and commitment to respect, protect and fulfil the rights to which internally
displaced persons are entitled, without discrimination of any kind.’78 However, the
Convention does include three clear clauses with respect to mass atrocity crimes.
The first reflects the illegality of arbitrary displacement. The Convention establishes that ‘all
persons have a right to be protected against arbitrary displacement’ which is defined as
including eight prohibited categories. The first is displacement based on policies of racial
discrimination or other similar practices. The second is displacement in ‘situations of armed
conflict unless the security of the civilians involved or imperative military reasons so
demand, in accordance with international humanitarian law.’79 Similar prohibitions are
established against intentional displacement as a method of warfare; displacement caused by
generalized violence; as a result of harmful practices; non-required forced evacuations during
natural or human made disasters; displacement as collective punishment; and any act of
comparable gravity.80 A separate clause reinforces that ‘State Parties shall declare as offences
77 Art. 7(4).
78 Preamble. Abede suggests that ‘the Convention avoided making explicit references to concepts such as
“humanitarian intervention”, “responsibility to protect”, and others mainly out of fear that these references will
“radicalise” the text making any future adoption of the Convention extremely difficult.’ Allehone Mulugeta
Abebe, ‘The African Union Convention on Internally Displaced Persons: Its Codification Background, Scope,
and Enforcement Challenges,’ Refugee Survey Quarterly 29, no. 3 (2010): 57.
79 Art. 4(b).
80 Art. 4(c-h).
23
punishable by law acts of arbitrary displacement that amount to genocide, war crimes or
crimes against humanity.’81 The Convention also establishes that state parties have an
obligation to protect the rights of IDPs by refraining from and prevention ‘genocide, crimes
against humanity, war crimes and other violations of international humanitarian law against
internally displaced persons.’82 And the Convention introduces a remedies clause,
establishing that ‘State Parties shall provide persons affected by displacement with effective
remedies’ including compensation and reparations frameworks at the domestic level ‘in
accordance with international standards.’83
Finally, the Convention ‘confirms that the AU’s powers of intervention apply to internally
displaced persons.’84 It reiterates Article 4(h) of the African Union’s Constitutive Act, noting
the ‘African Union shall have the right to intervene in a Member State… in respect of grave
circumstances, namely: war crimes, genocide, and crimes again humanity.’85 As Omorogbe
notes, ‘it follows that where there are internally displaced persons, Article 8 of the Kampala
Convention provides the AU with a right to intervene across the range of circumstances
covered by the “responsibility to protect”, including cases of armed conflict and gross
violations of international criminal law.’86
Measuring Implementation
81 Art. 4(6).
82 Art. 9 1(b).
83 Art. 12 (1) and (2). It also includes a further clause that ‘State Party shall be liable to make reparation…
when such a State Party refrains from protecting and assisting internally displaced persons in the event of
natural disasters.’ Art. 12 (3).
84 Eki Yemisi Omorogbe, ‘The African Union, Responsibility to Protect and the Libyan Crisis,’ Netherlands
International Law Review 59, no. 02 (2012): 151.
85 Article 8(1)
86 Omorogbe, ‘The African Union, Responsibility to Protect and the Libyan Crisis,’ 151-2.
24
And yet, how can we measure the Convention’s implementation? Has it been effective in
ensuring that IDPs have access to the rights embodied within it? Its rapid entry into force is
one important marker of its success. Introduced in 2009, it came into force in 2012. Twenty-
five countries have now ratified it, and another eighteen states have signed it.87 The AU’s
Executive Council has also promoted the convention, urging member states initially to move
forward with the implementation of the Convention.88 With its entry into force, the Executive
Council has continued to urge the member states ‘that have not yet done so to expedite
signing and ratification of the Kampala Convention…’89
On paper, at least, the Convention introduces strong mechanisms to monitor implementation
and compliance. The first of these is an agreement to establish a Conference of State Parties
which will ‘enhance their capacity for cooperation and mutual support’ and ‘shall be
convened regularly and facilitated by the African Union.’90 As Kidane notes, the Convention
‘does not properly define the mandate of the “Conference”… [it] does not give any
meaningful guidance as to how the Conference of States may carry out its mission of
monitoring compliance.’91 Based on this, he concludes the ‘contracting states obviously did
not want to create a robust enforcement mechanism’ suggesting that they could have created
an independent agency to monitor the Convention had they wished to do so.92 But creating
such an agency would have entailed significant costs, and it would also be variant from both
87 IDMC “IDP Laws and Policies: A Mapping Tool’, http://www.internal-displacement.org/law-and-policy,
accessed 4 March 2016.
88 African Union Executive Council ‘Decision on the Humanitarian Situation in Africa’ Doc. EX.CL/668(XIX),
23-28 June 2011
89 African Union Executive Council ‘Decision on the Report of the Sub-Committee on Refugees, Returnees,
and Internally Displaced Persons in Africa’ EX.CL/802(XXIV)V, 21-28 Jan 2014.
90 Art. 14 (1-3).
91 Won Kidane, ‘Managing Forced Displacement by Law in Africa: The Role of the New African Union IDPs
Convention,’ Vanderbilt Journal of Transnational Law 44(2011): 76-7.
92 Ibid., 77.
25
international practice where there is no single-purpose IDP body and also with past
African practice such as around the OAU Convention. So far, this issue has been moot. The
United Nations’ Special Rapporteur on the Human Rights of Internally Displaced Persons,
Dr. Chaloka Beyani, notes that ‘the Conference of States Parties has never convened despite
the provision in article 14 (2). The Special Rapporteur has repeatedly expressed his wish for
the Conference of States Parties to be established in the near future.’93
Further, this does not take into account the other potential enforcement mechanisms within
the Kampala Convention. It also requires that state parties will indicate any legislative and
other measures when presenting their reports under the Article 62 process of the African
Charter on Human and Peoples’ Rights. As Goodman and Jinks have noted in a general
context, ‘the significance of periodic state reports can help states and other interested actors
to assess actual practices under the terms of the treaty.’94
At present, however, this process is poorly upheld. A number of countries have either never
submitted a report, or are decades behind on their reporting responsibilities. Of the ten
periodic reports submitted since the Kampala Convention came into force, only half even
mention IDPs, and only three point to concrete legislative and policy changes towards IDPs.95
As an example, the government of Kenya, which is only a signatory to the Great Lakes
Protocol, not the Kampala Convention, notes that they have adopted a policy to prevent
93 Human Rights Council, ‘Report of the Special Rapporteur on the Human Rights of Internally Displaced
Persons, Chaloka Beyani’, 4 April 2014, A/HRC/26/33, 15.
94 Ryan Goodman and Derek Jinks, ‘How to Influence States: Socialization and International Human Rights
Law,’ Duke Law Journal (2004): 694.
95 Article 62 Process Reports are available at: http://www.achpr.org/states/reports-and-concluding-observations/
Since 2012, 10 reports have been submitted from including from 4 states which have ratified and two states
which have signed the Convention.
26
future displacement and to fulfil its responsibilities in line with regional and international law,
and have drafted an IDP bill.96
The Convention also establishes that ‘any dispute or differences arising between the States
Parties with regard to the interpretation or application of this Convention’ shall be settled
amicably, but in the event of a failure to settle ‘either State may refer the dispute to the
African Court of Justice and Human Rights’ once established and prior to that to the
Conference of States Parties ‘which will decide by consensus or, failing which, by a two-third
(2/3) majority…’97 Hence, it is entirely possible (if unlikely) for a State Party to refer another
State Party for a failure to either implement or abide by the Convention.
Finally, as noted above, the Convention establishes a clear responsibility on its signatories to
introduce domestic legislation. And yet, there has been no domestic acceleration of
implementation efforts – in fact, these processes seem to have almost stopped in Africa since
the Convention was negotiated, with only one new piece of national legislation (that of
Kenya) introduced since 2009. The Convention should provide an opening to domestic and
international actors to pressure governments to conform to the legislation; thus it is surprising
that – as of yet at least - there has been no clear regional shift at the domestic level.
At this stage, therefore, it is easier to discuss the Convention as having anticipatory
enforcement mechanisms, rather than effective mechanisms. But it is important to note that
these do reflect clear obligations that state parties have agreed to: to implement domestic
legislation, to report periodically on that implementation, and to meet regularly to monitor
96 Republic of Kenya, ‘Combined 8th-11th Periodic Report on the African Charter on Human & Peoples’ Rights,’
November 2014, 27.
97 Art. 22 (1-2).
27
and review implementation. The AU Commission played an important role in getting the
Convention ratified, including formulating a clear Plan of Action and a subsequent
Ministerial-level meeting.98 Beyond the AU itself, a range of actors – including UNHCR and
the Internal Displacement Monitoring Centre (IDMC) have welcomed the Convention, and
IDMC has begun training programs on it.99 However, it is also important that the international
community encourage the state parties to implement these monitoring and enforcement
mechanisms.
ASEAN: Limited Protections for IDPs
In contrast to the AU, ASEAN has taken few formal steps towards providing protections to
IDPs.100 This was in spite of a number of recent large scale IDP situations within its member
states. These included up to 1.4 million internally displaced Indonesians between 1999 and
2001 as a result of religious-based conflicts including local ethnic cleansing, of whom some
80,000 remain displaced;101 up to a hundred and twenty thousand displaced Filipinos as a
result of violence in Mindanao driven by Muslim separatist non-state armed groups;102 and
the long term displacement of over 600,000 people in Myanmar as a result of protracted
98 Marina Sharpe, ‘Engaging with Refugee Protection? The Organization of African Unity and African Union
since 1963,’ in New Issues in Refugee Research (Geneva: UNHCR, 2011), 31.
99 See IDMC ‘Workshop Report- Domesticating the Kampala Convention: Law and Policy Making,’ 30 June -2
July 2014, Monrovia, Liberia. http://www.internal-displacement.org/publications/2014/domesticating-the-
kampala-convention-law-and-policy-making, accessed 19 May 2015.
100 Eva-Lotta E Hedman, ‘Refugees, IDPs, and Regional Security in the Asia-Pacific,’ in Cscap Regional
Security Outlook 2009-2010: Security through Co-Operation, ed. Brian L. Job and E. E. Williams (Kuala
Lumpur: Council for Security Cooperation in the Asia Pacific, 2009).
101 Eva-Lotta E Hedman ‘Introduction: Dynamics of Displacement in Indonesia,’ in Conflict, Violence, and
Displacement in Indonesia, ed. Eva-Lotta E Hedman (Ithaca: Cornell Souteast Studies Program Publications,
2008), 4-6.
102 IDMC, ‘Philippines IDP Figures Analysis,’ May 2015. Available at: http://www.internal-
displacement.org/south-and-south-east-asia/philippines/figures-analysis.
28
conflict between the government and a range of ethnic separatist non-state armed groups.103
As of 2014, there were some 870,000 people internally displaced within ASEAN (see Table 1
above). Further, the international response to internal displacement tends to follow the wider
precepts of the Association. As Kälin notes, ‘by virtue of state sovereignty, the international
community is not entitled to substitute for national authorities but plays a subsidiary role of
supporting or complementing governmental action.’104 Thus as ASEAN has begun to develop
human rights and migrant policies at the regional level, this has also begun to affect how the
Association responds to internally displaced persons.
Human rights were not initially a concern of the Association, and were not mentioned in its
constitutive Declaration.105 This also reflects a lack of engagement with other multilateral
human rights Conventions. ASEAN, for example, is only one of two regions globally (the
other being the Middle East) with virtually no signatories to the 1951 Refugee Convention -
only Cambodia has ratified it.106 Instead, the majority of states are signatories to the 1966
Bangkok Principles which, while establishing an expectation to provide refugees with asylum
and protection against refoulement, are non-binding and ‘do not create reciprocal regional
expectations about how refugees should be treated.’107 There is also a mixed record of
103 IDMC, ‘Myanmar: Internal Displacement in Brief’, Dec 2013. Available at: http://www.internal-
displacement.org/south-and-south-east-asia/myanmar/summary.
104 Walter Kälin, ‘Internal Displacement,’ in The Oxford Handbook of Refugee and Forced Migration Studies,
ed. Elena Fiddi an-Qasmiyeh, et al. (Oxford: Oxford University Press, 2014), 166.
105 Yuval Ginbar, ‘Human Rights in ASEAN—Setting Sail or Treading Water?,’ Human Rights Law Review 10,
no. 3 (2010): 505-6.
106 UNHCR, ‘State Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol,’
April 2015. Available at: http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf.
107 Sara E Davies, ‘The Asian Rejection? International Refugee Law in Asia,’ Australian Journal of Politics &
History 52, no. 4 (2006): 563.
29
ratifications across ASEAN member states with respect to core international human rights
instruments.108
In the past decade, however, there has been a steady shift within the Association towards
entrenching human rights. The ASEAN Charter, which was adopted in 2007, continued to
respect the independence of its members. However, it also noted that one of the Association’s
purposes was to ‘promote and protect human rights and fundamental freedoms, with due
regard to the rights and responsibilities of the Member States of ASEAN.’109 As Ginbar
argues, ‘the sheer generality of the Charter’s human rights provisions would make it
difficult… to consider them as more than declaratory, or as creating specific obligations on
member states.’110
Even so, the Charter represented a shift to a ‘binding regional pact’ for the ASEAN member
states, one which did include a provision to establish a new human rights body.111 This led to
the ASEAN Intergovernmental Commission on Human Rights in 2009 and the subsequent
creation of the 2012 ASEAN Human Rights Declaration. The Declaration layouts a human
rights framework for the region, one that recognizes the civil and political rights in the United
Nations’ Universal Declaration of Human Rights, including an inherent right to life, to
personal liberty and security, ‘to freedom of movement and residence within the borders of
108 Theodor Rathgeber, ‘Human Rights and the Institutionalisation of ASEAN: An Ambiguous Relationship,’
Journal of Current Southeast Asian Affairs 33, no. 3 (2014).
109 ASEAN, ‘ASEAN Charter.’ Available at: http://www.asean.org/archive/publications/ASEAN-Charter.pdf, 4.
110 Ginbar, ‘Human Rights in ASEAN —Setting Sail or Treading Water?,’ 512.
111 Hsien-Li Tan, The ASEAN Intergovernmental Commission on Human Rights: Institutionalising Human
Rights in Southeast Asia (Cambridge University Press, 2011). 4.; ASEAN, ‘ASEAN Charter.’ Available at:
http://www.asean.org/archive/publications/ASEAN-Charter.pdf, 19.
30
each State,’ and ‘the right to seek and receive asylum in another State in accordance with the
laws of such State and applicable international agreements.’112
The Declaration has been subject to wide-ranging critiques. The language in the Declaration
is limiting – the United States government has criticized it for ‘stipulating that domestic laws
can trump universal human rights, incomplete descriptions of rights that are memorialized
elsewhere; introducing novel limits to rights; and language that could be read to suggest that
individual rights are subject to group veto.’113 It is also non-binding: through it ‘the
commission has no power to investigate governments or impose sanctions. It is strictly a
consultative mechanism accountable to the foreign ministers of ASEAN.’114 At the same time,
it reflects a process of incremental institutionalization of human rights within ASEAN.
The Rohingya
The plight of the Rohingya in Myanmar has now challenged these processes. While the
Rohingya population in Rakhine State date to the 16th century, they were not recognized as
citizens in the 1982 Burma Citizenship Law. Widespread violence since 2012 have seen
150,000 Rohingya Musims internally displaced, while more than 100,000 have fled the
country.115 The UN Special Rapporteur on the Situation of Human Rights in Myanmar has
noted that ‘discriminatory restrictions on freedom of movement for internally displaced
Muslims remain in place’ and that the Rohingya have a right ‘to self-identification according
112 ASEAN Human Rights Declaration, 2012, Art. 10,11,14,15.
113 U.S. Department of State, ‘ASEAN Declaration on Human Rights,’ 20 Nov 2012. Available at:
http://www.state.gov/r/pa/prs/ps/2012/11/200915.htm.
114 Rathgeber, ‘Human Rights and the Institutionalisation of ASEAN,’ 161.
115 ASEAN Parliamentarians for Human Rights, ‘The Rohingya Crisis and the Risk of Atrocities in Myanmar:
An ASEAN Challenge and Call to Action,’ (APHR, 2015), 3; Human Rights Watch, ‘Burma: New Violence in
Araken State,’ (New York: Human Rights Watch, 2012).
31
to international law.’116 These are both issues which violate the ASEAN Human Rights
Declaration. Combined, these IDP and refugee movements have challenged the limited nature
of the ASEAN framework, and driven a policy, if not a legal, solution by the Association.
It was the growing refugee numbers, particular those escaping by boat who were frequently
being pushed back to sea, coupled with the discovery of mass graves of refugees in Thailand,
which triggered this shift.117 By May 2015, individual ASEAN states were arguing for a
change in policy. Following his countries rejection of a number of boats, Malaysian Prime
Minister Datuk Seri Najib Tun Razak, ASEAN’s chairman at the time, argued that while
ASEAN respected non-interference, ‘when a certain problem has spread and affects the
leadership of other ASEAN nations and possibly outside ASEAN, then we need to find
solutions through an ASEAN forum and cooperate with other parties.’118 Former Malaysian
Prime Minister Mahathir Mohamad was less cautious in his criticism, noting that what was
happening to the Rohingya ‘is so terrible that nothing can describe it… If Myanmar wants to
commit genocide, then leave ASEAN.’119
This triggered a special meeting on irregular migration in the Indian Ocean hosted by the
Thai government on 29 May 2015 and included seventeen governments and included all the
ASEAN member states. While the Myanmar government was initially unwilling to
116 UN General Assembly, ‘Report of the Special Rapporteur on the situation of Human Rights in Myanmar,
Yanghee Lee,’ A/HRC/28/72, 23 Mar 2015, 12,14.
117 Thomas Fuller and Joe Cochrane, ‘Rohingya Migrants From Myanmar, Shunned by Malaysia, are Spotted
Adrift in Andaman Sea’ The New York Times, 14 May 2015. Available at:
http://www.nytimes.com/2015/05/15/world/asia/burmese-rohingya-bangladeshi-migrants-andaman-sea.html;
Emanuel Stoakes ‘Thailand human trafficking death toll far greater than feared, claims rights group,’ The
Guardian, 6 May 2015. Available at: http://www.theguardian.com/global-development/2015/may/06/thailand-
human-trafficking-mass-grave-burma-rohingya-people.
118 ‘Asean needs to jointly address Rohingya refugee issue, says Najib,’ The Star (Malaysia), 16 May 2015.
Available at: http://www.thestar.com.my/News/Nation/2015/05/16/Najib-Asean-Rohingya-issue/.
119 Quoted in Luke Hunt ‘ASEAN Move on Rohingya, Slow but Forward’ The Diplomat, 22 Jun 2015.
Available at: http://thediplomat.com/2015/06/asean-move-on-rohingya-slow-but-forward/.
32
participate, they relented following bilateral meetings with the Foreign Ministers of Indonesia
and Malaysia and following a commitment that the word ‘Rohingya’ would not be used
during the meeting.120 As part of the outcome of that meeting, Indonesia and Malaysia both
agreed to provide temporary shelter to the Rohingya trapped at sea, but also agreed to address
root causes, including ‘addressing factors in the areas of origin including… enhancing a sense
of security and belonging, promoting full respect for human rights…’121
This crisis may have lasting effects in two ways. First, it directly affected ASEAN’s
reputation. Xiong notes that ‘the failure to tackle the refugee crisis could have cast skepticism
on the credibility of the ASEAN Community…’122 The Bangkok meeting was able to
maintain the norms of consensus and non-interference that are pivotal to the Association.
However, it illustrates two phenomena. First, the meeting was able to create an informal
mechanism to end the plight of the Rohingya boat people in the region. Second, there appears
to have been some pressure put on Myanmar to attend. This suggests that the ASEAN
member states are prepared to push Myanmar not just on the Rohingya issue generally, but
also on how it is treating the Rohingya within its territory albeit in limited ways.
Second, the Rohingya crisis provided an opportunity to civil society for renewed engagement
to frame how the Association should respond to human rights violations. The ASEAN
Parliamentarians for Human Rights, for example, issued a report noting that ‘denied
citizenship, Rohingya are considered stateless and lack the protections and rights afforded to
120 Sampa Kundu, ‘The Rohingyas: Security Implications for ASEAN and Beyond,’ IDSA Issue Brief (2015),
http://www.idsa.in/issuebrief/TheRohingyas_skundu_280515.html.
121Ministry of Foreign Affairs of The Kingdom of Thailand, ‘Summary: Special Meeting on Irregular
Migration in the Indian Ocean, 29 May 2015, Bangkok, Thailand’ 29 May 2015. Available at:
http://www.mfa.go.th/main/en/media-center/14/56880-Summary-Special-Meeting-on-Irregular-Migration-
in.html.
122 David Han Guo Xiong, ‘Rohingya Refugee Crisis: Testing Malaysia's Asean Chairmanship,’ RSIS
Commentary, no. 128 (2015): 2.
33
citizens.’123 But the report also argued that the crisis represented a problem for all of ASEAN
and called on its leaders to both:
Expand the mandate of the ASEAN Intergovernmental Commission on Human Rights
(AICHR) to include country visits, inquiries, complaints, and emergency protection
mechanisms, and ensure adequate independence and staffing support for its
members… Call upon the Myanmar government to adhere to regional and inter-
national human rights and humanitarian standards.124
This suggests that policy solutions are not enough, and that the ASEAN Intergovernmental
Commission on Human Rights and the ASEAN Human Rights Declaration mechanisms can
be used to further entrench human rights in the region. This may provide an opening, too, to
entrench specific rights for the internally displaced, anchored in the Guiding Principles on
Internal Displacement. Here, the Kampala Convention may provide a model worthy of
emulation.
Conclusions
Instances of forcible displacement particularly forced deportation across a state’s borders
and forcible transfer within a state can qualify either as crimes against humanity or war
crimes, and hence fall within the remit of the Responsibility to Protect (RtoP) doctrine. But
how to ensure the rights of the displaced against such mass atrocity crimes are upheld? One
important step is ensuring these international rights are brought into practice at the regional
and domestic levels.
The Guiding Principles on Internal Displacement, while soft law, reflect these mass atrocity
crimes, particularly with respect to a clear right against arbitrary displacement. In both the
123ASEAN Parliamentarians for Human Rights, ‘The Rohingya Crisis and the Risk of Atrocities in Myanmar:
An Asean Challenge and Call to Action,’ 4.
124 Ibid., 15-16.
34
Asia-Pacific and Africa, a range of states have introduced domestic legislation and policies
which reflect the Guiding Principles and this right against arbitrary displacement. However,
there is a clear disparity with how these issues are dealt with at the regional level. In Africa
there has been a move to introduce the Guiding Principles into binding regional law, first
through the Great Lakes Protocol, and now through the African Union’s Kampala
Convention. By contrast, in the Asia-Pacific, there has been little formal or even informal
regional cooperation on the issue. As ASEAN builds its human rights architecture, however,
anchored in the ASEAN Intergovernmental Commission on Human Rights and the ASEAN
Human Rights Declaration, there may be space for change in the region.
The Kampala Convention introduces not only a legal model for how IDP rights can be
brought into international law for other regional organizations like ASEAN, but also how
other aspects of the RtoP doctrine can be introduced in a more binding manner. The
Convention not only notes the illegality of mass atrocity crimes against IDPs, but also
establishes the right of the AU to intervene in such circumstances. Further, the Convention
introduces a range of mechanisms to monitor and enforce its implementation. As I have
argued, at this time these mechanisms remain anticipatory. But this is a clear example of
Pillar Two of the RtoP doctrine at work; here, international assistance to help states
effectively implement the Kampala Convention is not only warranted, but will provide IDPs
with a clear and comprehensive set of rights to protect them against mass atrocity crimes.
35
... This is a notable achievement in the general development of accountability in international law. 88 Admittedly, this nature of accountability would be difficult to realize in some cases where States are unable or unwilling to undertake such a role. Nevertheless, the Convention recognizes this gap and makes a provision to the effect that accountability may also be undertaken at the international level. ...
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