Refugees and internally displaced persons and human rights: The African system

Refugee Survey Quarterly

Volumn 24, Issue 2, 2005, Pages 56-66

  Murray, Rachel ^a  

^a UNIVERSITY OF BRISTOL   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

REFUGEE;

EID: 21344453482     PISSN: 10204067     EISSN: None     Source Type: Journal    
DOI: 10.1093/rsq/hdi026     Document Type: Article

References (93)

1. See G.S. Goodwin-Gill: The Refugee in International Law, Oxford University Press, Oxford, 2nd ed. 1996, p.268;
2. B. Gorlick: "Human Rights and Refugees: Enhancing Protection through International Human Rights Law", Working Paper No.30, New Issues in Refugee Research, 2000, UNHCR, New York, p.10.
3. T. Clark and F. Crépeau, "Mainstreaming Refugee Rights. The 1951 Refugee Convention and International Human Rights Law", Netherlands Quarterly of Human Rights, Vol.17, No.4, 1999, pp.389-410.
4. The principal organs of the OAU were the Assembly of Heads of State and Government, a Council of Ministers and a General Secretariat.
5. Constitutive Act of the African Union, adopted 11 July 2000, came into force 26 May 2001.
6. G. Okoth-Obbo: "Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention", African Yearbook of International Law, Vol.8, 2000, pp.3-70, 14;
7. S.A. Abioni: Protection of Refugees in Africa, Uppsala, Sveknsak Institutet för Internationell Rätt, 1978, p.33.
8. AHSG, CAB/LEG/24.3, 10 September 1969. Hereinafter 'OAU Convention on Refugees'.
9. Article 1 OAU Convention on Refugees.
10. Article 2(1) OAU Convention on Refugees.
11. Article 2(2) OAU Convention on Refugees.
12. Article 5 OAU Convention on Refugees.
13. A.C. Helton: The Price of Indifference. Refugees and Humanitarian Action in the New Century, Oxford University Press, Oxford, 2002, p.164.
14. J Oloka-Onyango: "The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of the Refugee and Internally Displaced Woman in Africa", Denver Journal of International Law, Vol.24, 1996, pp.349-394, 375.
15. Previously named the Bureau for Placement and Education of African Refugees.
16. J. Oloka-Onyango: "The Place and Role of the OAU Bureau for Refugees in the African Refugee Crisis ", International Journal of Refugee Law, Vol.6, 1994, pp.34-52.
17. Lawyers' Committee for Human Rights: African Exodus. Refugee Crisis, Human Rights and the 1969 OAU Convention, Lawyers' Committee for Human Rights, New York, 1995, pp.41-42.
18. For a detailed consideration of the approach of the OAU see R. Murray: Human Rights in Africa. From Organization of African Unity to African Union, Cambridge University Press, 2004, Chapter 7, forthcoming.
19. See OAU Council of Ministers 1985 Resolution on the Root Causes of the African Refugee Problem, CM/Res.987 (LXII).
20. See C.O.C. Amate: Inside the OAU. Pan-Africanism in Practice, St. Martin's Press, New York, 1986, p.471.
21. See, for example, Resolution on Refugees, Returnees and Displaced Persons in Africa, CM/Res. 1521 (LX);
22. Resolution on the Situation of Refugees in Africa, CM/Res.829(XXXVI);
23. Resolution on the OAU Bureau for the Placement and Education of Refugees, CM/Res.346(XXIII);
24. Resolution on Africa Refugee Day, CM/Res.398(XXIV);
25. Resolution on the Root-Causes of the African Refugee Problem, CM/Res 987 (XLII);
26. Resolution on the Problem of Refugees in Africa, CM/Res.149 (XI);
27. Tunis Declaration on the 1969 Convention Governing the Specific Aspects of Refugee Problems, 13-15 June 1994 Tunis, Tunisia, AHG/DECL.6 (XXX);
28. Resolution on Voluntary Repatriation of African Refugees, CM/Res.399 (XXIV);
29. Resolution on Refugees, Returnees and Displaced Persons in Africa, CM/ Res.1433 (LVII);
30. Decision on the Report of the OAU Commission on Refugees, Regarding the Situation of Refugees, Returnees and Displaced Persons in Africa, (CM/ 2171 (LXXII), CM/Dec.531 (LXXII);
31. Resolution on the Assistance of the Organization of African Unity to the Chadian Refugees and the Displaced Persons, CM/Res.818 (XXXV);
32. Resolution on the Situation of Migrants in Africa, CM/Res.1413(LVI).
33. For example, The Pan African Conference on the Situation of Refugees in Africa, Arusha, May 1979;
34. International Conferences on Assistance to Refugees in Africa, ICARA I and ICARA II;
35. International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa, August 1988;
36. Recommendations of the OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa, adopted by the OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa, 8-10 September 1994, Addis Ababa, Ethiopia;
37. Report. Special OAU/UNHCR Meeting of Government and Non-Government Technical Experts on the 30th Anniversary of the 1969 OAU Refugee Convention, Conakry, Guinea, 27-29 March 2000.
38. Khartoum Declaration on Africa's Refugee Crisis, September 1990, adopted by the 17th Ordinary Session of the Commission of Fifteen on Refugees, Khartoum, Sudan, 22-24 September 1990, para 13.
39. Resolution on the Root Causes of the African Refugee Problem, CM/ Res.1274 (LII);
40. Resolution on Refugees and Displaced Persons in Africa, CM/Res.1370 (LV).
41. See Resolution on the Commission for Ten on Refugees, CM/Res.296 (XX), para 12;
42. Resolution on Special Assistance to Southern African Refugees, CM/ Res.547 (XXIX).
43. Report of the Secretary-General on the Thirtieth Ordinary Session of the OAU Commission on Refugees, on the Situation of Refugees, Returnees and Displaced Persons in Africa, CM/2105 (LXX) Rev.1, para 30.
44. Recommendations of the Brookings Institute/UNHCR/OAU Workshop on Internal Displacement in Africa, adopted at the Brookings Institute/ UNHCR/ OAU Workshop on Internal Displacement in Africa, 19-20 October 1998, Addis Ababa, Ethiopia.
45. Article 3(h) of the Act provides among the Objectives of the Union to 'promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments'. The Principles in Article 4 include 'respect for democratic principles, human rights, the rule of law and good governance'.
46. Articles 2 and 3 respectively.
47. Article 12(2) reads 'Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality'.
48. Article 12(3) reads 'Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions'. The Commission has stated that 'this provision should be read as including a general protection of all those who are subject to persecution, that they may seek refuge in another state', Communications 27/89, 46/91, 49/ 91, 99/93, Organisation Mondiale Contre La Torture and Association Internationale des Juristes Democrates, Commission Internationales des Juristes, Union Interafricaine des Droits de l'Homme v Rwanda, Seventh Activity Report of the African Commission on Human and Peoples' Rights, 1993-1994, ACHPR/RPT/7th, para 31.
49. Articles 12(4) and (5) read 'A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups'.
50. For example, at its 8th session in October 1990, see Agenda of 8th Ordinary Session, Fourth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1990-1991, ACHPR/RPT/4th, Annex II.
51. In Harare 16-18 February 1994, Seminar on African Refugees and Internally Displaced Persons, with Southern African Centre for Research and Documentation.
52. Although the recommendations of the conference in Harare were attached to the Commission's Seventh Activity Report of the African Commission on Human and Peoples' Rights, 1993-1994, ACHPR/RPT/7th, Annex VII. These included recommending that legal aid and assistance to be granted to refugees and internally displaced to access the African Commission on Human and Peoples' Rights to seek redress and for this Commission to take account of the rights of refugees and displaced persons.
53. See for example, Annotated Agenda of the 25th Ordinary Session, Burundi, April/May 1999, DOC/OS (XXV)/81.
54. E.g. with regard to the right to education, Resolution on Human and Peoples' Rights Education, Seventh Activity Report of the African Commission, Annex X.
55. See e.g. Resolution on the Human Rights Situation in Africa, Eighth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1994-1995, ACHPR/RPT/8th, Annex VII;
56. Resolution on Sudan, Eighth Annual Activity Report of the African Commission, Annex VIII.
57. Resolution on Burundi, Ninth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1995-1996, ACHPR/RPT/9th, Annex VII.
58. Resolution on the Observance of the 30th Anniversary of the OAU Convention, 13th Annual Report, AHG/222 (XXXVI), Annex IV.
59. Communication 71/92, Rencontre Africaine pour la Defense des Droits de l'Homme (RADDHO) v. Zambia, Tenth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1996-1997, ACHPR/RPT/10th, para 52.
60. Communications 27/89, 46/91, 49/91, 99/93, Organisation Mondiale Contre La Torture and Association Internationale des Juristes Democrates, Commission Internationales des Juristes, Union Interafricaine des Droits de l'Homme v Rwanda, Seventh Activity Report of the African Commission on Human and Peoples' Rights, 1993-1994, ACHPR/RPT/7th.
61. Article 5 reads: 'Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment or treatment shall be prohibited'.
62. Communication 97/93, John K Modise v Botswana, Tenth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1996-1997, ACHPR/RPT/10th.
63. This reads: 'Every individual shall have the right to freedom of movement and residence within the borders of a state provided he abides by the law'.
64. Communication 228/99, The Law Office of Ghazi Suleiman v Sudan, Sixteenth Annual Activity Report of the African Commission.
65. Communication 215/98, Rights International v Nigeria, Thirteenth Annual Activity Report of the African Commission.
66. Communications 54/91, 61/91, 98/93, 164/97-196/97, 210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Collectif des Veuves et Ayants-Droits and Association Mauritanienne des Droits de l'Homme v Mauritania, Thirteenth Annual Activity Report of the African Commission, Addendum.
67. Communications 54/91, 61/91, 98/93, 164/97-196/97, 210/98, Malawi African Association, Amnesty International, Ms Sarr Diop, Collectif des Veuves et Ayants-Droits and Association Mauritanienne des Droits de l'Homme v Mauritania, Thirteenth Annual Activity Report of the African Commission, Addendum, para 126.
68. Articles 55-59, ACHPR.
69. Among other admissibility conditions, Article 56, ACHPR.
70. Communication 215/98, Rights International v Nigeria, Thirteenth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1999-2000, AHG/222 (XXXVI).
71. Communication 247/2002, Institute for Human Rights and Development in Africa (on behalf of Jean Simbarakiye) v Democratic Republic of Congo, Sixteenth Annual Activity Report of the African Commission on Human and Peoples' Rights, 2002-2003, ACHPR/RPT/16th, Annex V.
72. Communication 162/97, Mouvement des Réfugiés Mauritaniens au Sénégal v Senegal, Eleventh Annual Activity Report of the African Commission on Human and Peoples' Rights, 1997-1998, DOC/OS/43 (XXIII), Annex II.
73. Communication 232/91, John D Ouko v Kenya, Fourteenth Annual Activity Report of the African Commission on Human and Peoples' Rights, 2000-2001, AHG/229 (XXXVII).
74. The situation of Mauritanians who were expelled to Senegal was the focus of communications and a mission to the country, Report of the Mission to Mauritania, Nouakchott, 19-27 June 1996, Tenth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1996-1997, ACHPR/RPT/10th, Annex IX.
75. States are required to report to the Commission every two years on the legislative and other measures they have taken to implement the provisions of the ACHPR, Article 62 ACHPR.
76. Article 4(2)k on the right to life calls on states to 'ensure that women and men enjoy equal rights in terms of access to refugee status, determination procedures and that women refugees are accorded the full protection and benefits guaranteed under international refugee law, including their own identity and other documents'. Article 10(2)(c) and (d) on the right to peace requires states to 'take all appropriate measures to ensure the increased participation of women... in the local, national, regional, continental and international decision making structures to ensure physical, psychological, social and legal protection of asylum seekers, refugees, returnees and displaced persons, in particular women; in all levels of the structures established for the management of camps and settlements for asylum seekers, refugees, returnees and displaced persons, in particular, women'. Article 11 provides 'States Parties undertake to protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide and/or crimes against humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction', Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted by 2nd Ordinary Session of the Assembly of the African Union, Maputo, 11 July 2003.
77. See Thirteenth Annual Activity Report of the African Commission, para 66.
78. Comprehensive Action Plan, adopted by the Special OAU/UNHCR Meeting of Government and Non-Government Technical Experts on the 30th Anniversary of the 1969 OAU Refugee Convention, Conakry, Guinea, 27-29 March 2000, CONEP/OAU30th/CORE/4-Rev.1. Report. Special OAU/UNHCR Meeting of Government and Non-Government Technical Experts on the 30th Anniversary of the 1969 OAU Refugee Convention, Conakry, Guinea, 27-29 March 2000.
79. Decision on the Fiftieth Anniversary of the Adoption of the 1951 Convention on the Status of Refugees, AHG/Dec.6 (XXXVII).
80. Action 15.
81. 33rd Ordinary Session of the African Commission, Niamey, Niger, 15-23 May 2003;
82. Memorandum of Understanding between the African Commission on Human and Peoples' Rights and the United Nations High Commissioner for Refugees, Sixteenth Annual Activity Report of the African Commission, Annex IV.
83. Article 1.
84. Article 2.
85. Article 3.
86. Article 4.
87. Kigali Declaration, MIN/CONF/HRA/Decl.1 (I), paras 12-14.
88. Report of the Meeting of Experts of the First AU Ministerial Conference on Human Rights in Africa, Kigali, Rwanda, 5-6 May 2003, EXP/CONF/HRA/ RPT. (II), para 40(2).
89. See Final Communiqué of the Thirty-Fourth Session of the African Commission on Human and Peoples' Rights, 6-20 November 2003.
90. Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, 9 June 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III).
91. The Protocol requires 15 states to ratify in order for it to come into force, Article 34.
92. Decision on the Seats of the African Union, Assembly/AU/Dec.45 (III). The AU originally set our the functions and remit of the African Court of Justice in a separate protocol to the Constitutive Act, Protocol of the Court of Justice of the African Union, adopted Maputo, 11 July 2003. This provided that the Court would be the 'principal judicial organ of the Union' (Article 2(2)) and for it to have 'jurisdiction over all disputes and applications referred to it in accordance with the Act and this Protocol which relate to the interpretation or application of the Act; the interpretation, application or validity of Union treaties and all subsidiary legal instruments adopted within the framework of the Union; any question of international law; all acts, decisions, regulations and directives of the organs of the Union; all matters specifically provided for in any other agreements that States Parties may conclude among themselves or with the Union and which confer jurisdiction on the Court; the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union; the nature or extent of the reparation to be made for the breach of an obligation', Article 19(1). The Assembly could also confer jurisdiction on the Court on matters beyond this, Article 19(2).
93. See 'Open Letter to the Chairman of the African Union (AU) seeking clarifications and assurances that the Establishment of an effective African Court on Human and Peoples' Rights will not be delayed or undermined', Amnesty International, IOR 63/008/2004, 5 August 2004.