file · web viewd’orsi, outlook on the conflict in casamance11/23/15 6:45 pm....

D’ORSI, OUTLOOK ON THE CONFLICT IN CASAMANCE 5/5/23 10:47:36

AN OUTLOOK ON THE CONFLICT IN CASAMANCE WITH A FOCUS ON THE LEGAL SITUATION OF

THE MOUVEMENT DES FORCES DÉMOCRATIQUES (“MOUVEMENT OF

DEMOCRATIC FORCES OF CASAMANCE”) AND ITS MEMBERS

CRISTIANO D’ORSI*

Introduction..............................................................................................101Question of Definitions..............................................................................102The Conflict in Casamance.......................................................................109Self-Determination and a Right to Resist for Casamance?........................123Humanitarian Law Applied to Internal Armed Conflicts.............................129Serious Non-political Crimes and Terrorism..............................................134Where we are now in looking for a way out of the conflict.......................148Several Conclusive Ideas about the Conflict in Casamance and the

MFDC members.............................................................................152

INTRODUCTION

This work will focus on legal-historical analysis of the conflict in Casamance, further exploring the key question linked to the main cause of the refugee flowing from this region and the possibility of invoking its self-determination. After that, and a brief investigation on the issue of the application of international humanitarian law to the conflict object of this study, this Article will explore

** Dr. Cristiano d’Orsi is a Post-Doctoral Fellow at Centre for Human Rights, Faculty of Law, University of Pretoria. He was previously a Gallatin Fellow at the University of Virginia School of Law, a Grotius Fellow at the University of Michigan Law School, a DAAD Fellow at the Max Planck Institute for International and Comparative Law, a Europeaum Fellow at the Refugee Studies Centre in Oxford and a candidate at the Centre for Studies and Research at the The Hague Academy of International Law. Dr. d’Orsi holds a Ph.D. in International Relations [International Law] from the Graduate Institute for International and Development Studies, in Geneva. In August 2015, he published a book with Routledge Publisher entitled: “Asylum-Seeker and Refugee Protection in Sub-Saharan Africa: The Peregrination of a Persecuted Human Being in Search of a Safe Haven.”

101


102 WILLAMETTE J. INT’L L. & DISPUTE RESOLUTION Vol. 23.1

whether the members of the Mouvement des Forces Democratiques de Casamance (MFDC), an anti-colonial movement first founded in 1947 by Emile Badiane, Victor Diatta, and Ibou Diallo and reformed in 1982, should be excluded from the refugee status they claim because they have committed serious non-political crimes before their admission in the country of asylum and whether they can even be considered “terrorists.”

This Article aims to shine a light on one of the most protracted and neglected (by both the “International Community”1 as well as by media) conflicts in Africa. This Article is not to find a final solution, but it makes clear that international law, through the work of different branches, can thrash out situations that seem not to be solvable if not recurring to political and diplomatic means. Because, as Charles Cheney Hyde said in 1928: “International Law is the means by which international justice is promoted among the nations.”2

QUESTION OF DEFINITIONS

In Africa, the emergence and actions of freedom fighters are directly tied to the decolonization process that the continent went through during the entire 20th

century, especially after the conclusion of the Second World War. However, in the past few decades, with Africa’s complete decolonization from European powers, freedom fighters have become increasingly associated with the national liberation movements developing across the continent. The “powers of occupation” are considered

1. See James Brown Scott, The Individual, the State, the International Community, 24 AM. SOC’Y INT’L L. PROC. 15, 15 (1930) (“[T]he individual inevitably is the primal unit of an international community; . . . the state is only a secondary and intermediate unit; . . . the community itself is the supreme unit, synonymous and identical with humanity, being the sum total of individuals making up humanity; . . . the community is likewise the sum total of the states composing the community; . . . the international community represents in its twofold capacity humanity in its relations with individuals, and the union of states in its relations with the states; and . . ., therefore, the international community, whether organized or inchoate, possesses at one and the same time the right to impose its will alike upon individual and state.”).

2. Charles Cheney Hyde, The Fundamentals of International Law, 33 COM. L. LEAGUE J. 307, 307 (1928).


2015 OUTLOOK ON THE CONFLICT IN CASAMANCE 103

not to be extra-continental but rather coming from other African countries.3 Heather Wilson described a war of national liberation as “a conflict waged by a non-State community against an established government to secure the right of the people of that community to self-determination.”4

The legal quintessence of the national liberation movements is well defined in Article 1.4 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977 Protocol I).5 Unlike

3. See Convention (IV) respecting the Laws and Customs of War on Land, Art. 42, Oct. 18, 1907, 36 Stat. 2306, available at http://www.icrc.org/ihl.nsf/INTRO/195 (defining “occupation” by stating that a “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”). See also Judicial Decisions, International Military Tribunal (Nuremberg), Judgments and Sentences, October 1, 1946, reprinted in 41 AM. J. INT’L L 172, 248–49 (1947) (“The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt ‘to revise the general laws and customs of war,’ which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.”).

4. HEATHER WILSON, INTERNATIONAL LAW AND THE USE OF FORCE BY NATIONAL LIBERATION MOVEMENT 1–2 (1988). See also NOELLE HIGGINS, THE APPROACH OF INTERNATIONAL LAW TO WARS OF NATIONAL LIBERATION 11 (Martin Monograph Series, The Martin Institute: Univ. of Idaho, Monograph 3, 2004), available at http://doras.dcu.ie/2268/ (last visited Sept. 10, 2015) (“Wars of national liberation take multifarious forms, from sporadic riots to sustained and concerted use of force against the established government. Therefore, the merits of each individual war of national liberation would have to be examined in order to deduce whether the threshold for insurgency or belligerency has been passed, and deduce whether the application of international law should be triggered”); R.R. Baxter, A Skeptical Look at the Concept of Terrorism, 7 AKRON L. REV. 380, 383 (1974) (“[A] “war of national liberation” is . . . a war conducted by a state against what is alleged to be an illegal occupation of its territory by another state.”).

5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Jun. 8, 1977, 1125 U.N.T.S. 3, available at https://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17512-English.pdf (last visited Sept. 1, 2015) [hereinafter 1977 Geneva Protocol I]. But see Edward Kwakwa, The Use of Force by National Liberation Movements: Trends Toward a Developing Norm?, 14 YALE J. INT’L L. 199, 201 (1989) (reviewing HEATHER WILSON, INTERNATIONAL LAW AND THE USE OF FORCE BY NATIONAL LIBERATION MOVEMENT 1–2 (1988)) (“There is



resistance movements,6 the national liberation movements struggle with the general ideological and political framework. This context is given by the armed conflicts in which the local population fights against colonial domination, alien occupation, or racist regimes.7 This is the exercise of their right8 of self-determination, as protected in the Charter of the United Nations9 and the Declaration of Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations.10 In a relevant part, the Declaration affirms:

Every State has the duty to refrain from any forcible action which deprives people . . . of their

evidence to suggest that the drafters of the Geneva Conventions did not intend to include conflicts which have subsequently come to be known as wars of national liberation in the 1949 Geneva Conventions.”).

6. See, e.g., Robert P. Barnidge, Resistance Movements, in 8 Max Planck Encyclopedia of International Law 952-954 (Rüdiger Wolfrum ed., Oxford University Press, 2012).

7. See 1977 Geneva Protocol I, Art. 1.4 (“The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”); INT’L COMM. RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 ¶ 90 d) (Yves Sandoz et al. eds., 1987) (“d) wars of national liberation are conflicts not of an international character, but some of these conflicts should involve the application of the law of armed conflicts as a whole because of their intensity or because of certain other characteristics.”).

8. But see Rupert Emerson, Self-Determination, 65 AM. J. INT’L L. 459, 461 (1971) (“[S]ubsequent practice as an element of interpretation does not support the proposition that the principle of self-determination is to be interpreted as a right or that the human rights provisions have come to be interpreted as rights with corresponding obligations either generally or specifically with respect to the right to self-determination.”) (quoting Leo Gross, The Right of Self-Determination in International Law, in NEW STATES IN THE MODERN WORLD (Martin Kilson ed., 1975)).

9. See U.N. Charter, art. 1, para. 2., available at http://www.refworld.org/docid/3ae6b3930.html (last visited Sept. 10 1, 2015) (“The purposes of the United Nations are . . . 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace . . . .”).

10. G.A. Res. 2625 (XXV), U.N. Doc. A/RES/2625 (XXV) (Oct. 24, 1970), available at http://www.un-documents.net/a25r2625.htm (last visited Sept. 10, 2015).



right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek, and to receive support in accordance with the purposes and principles of the Charter.11

However, as Heather Wilson pointed out, the Declaration does not expressly mention that “people may use force to secure their right to self-determination;” nor does it expressly mention armed resistance.12

An older dictionary defines a freedom fighter as a “person who uses violent means to bring about revolution.”13 More recent definitions vary, representing a “freedom fighter” either as “a person who uses violent methods to try to remove a government from power”14 or, under a less negative outlook (omitting the adjective “violent”), as “a person who takes part in a revolutionary struggle to achieve a political goal, especially in order to overthrow their government.”15 However, the concept of freedom fighter, like others in international law, can sometimes have an uncertain meaning, depending on who is analyzing a given situation. In the words of R. R. Baxter:

International Law is that body of law, which creates rights for me and duties for you… . . . .I am a patriotic soldier. You are a war criminal. I am a freedom fighter. You are a terrorist.” It is in language of this character that we carry on rational discourse in these days. These are the conventional epithets of the contemporary epic.16

11. Id. (U.N. also recognizes as part of international law “[t]he principle of equal rights and self-determination of peoples.”).

12. WILSON, supra note 4, at 99. 13. A.S. HORNBY, OXFORD ADVANCED LEARNER’S DICTIONARY OF CURRENT

ENGLISH 344 (1987). 14. Freedom Fighter Definition, CAMBRIDGE DICTIONARIES ONLINE, available

athttp://dictionary.cambridge.org/dictionary/british/freedom-fighter (last visited Sept. 10, 2015).

15. Freedom Fighter Definition, OXFORD DICTIONARIES, available athttp://www.oxforddictionaries.com/definition/english/freedom-fighter (last visited Sept. 10, 2015).

16. R.R. Baxter, supra note 4, at 380.



Before Japan surrendered on August 15, 1945, at the end of the Second World War, only two countries in Sub-Saharan Africa were independent: one was Liberia, which gained its independence from the United States (American Colonization Society) on July 16, 1847, through the Liberian Declaration of Independence.17 The other was Ethiopia, which regained its independence from Italy and the United Kingdom on December 19, 1944, through the Anglo-Ethiopian Agreement.18

During the 20th century, tens of liberation movements arose, several of them successful in their fights to guarantee independence from the colonial powers for the territories, and the communities they were representing. Among the most famous and successful are:

the National Front for the Liberation of Angola (NFLA) and the People’s Movement for the Liberation of Angola (PMLA)—both recognized by the African Union (AU), formerly known as the Organization of the African Unity (OAU); the Movement for the National Liberation of Comoro—recognized by both the AU and the League of Arab States (AL); the Mozambique Liberation Front (FRELIMO); the South West Africa People’s Organisation (SWAPO) in Namibia—recognized both by the AU and the Organization of the United Nations (UN);19 the Pan

17. The Declaration of Independence (Liberia), available at http://onliberia.org/con_declaration.htm (last visited Sept. 10. 1, 2015) (“The people of the Republic of Liberia, they, are of right, and in fact, a free, sovereign, and independent state, possessed of all the rights, powers, and functions of government.”).

18. For an analysis of the 1944 Agreement, see JOHN H. SPENCER, ETHIOPIA AT BAY: A PERSONAL ACCOUNT OF THE HAILE SELASSIE YEARS, 157 (2d. ed. 2006). But see id. (“While these 1944 agreements restored the outward aspects of Ethiopia’s independence, the ultimate future of the Ogden and of Eritrea, so central to that independence, remained unsettled. These two related problems were to dominate Ethiopia’s foreign relations over the next 15 years. She still had not been able to resolve the most important question of all, that upon which her independence ultimately depended: access to the sea.”). Ethiopia is Africa’s oldest independent country and apart from the five-year occupation by the Fascist Italy, it has never been colonized.

19. About the role of the SWAPO fighters in the liberation of Namibia, see Nele Matz-Luck, Namibia ¶ 44, in MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL LAW (“After Angola became independent in 1976 it seemed to offer shelter for SWAPO fighters. Furthermore, SWAPO forces became involved in the internal struggle for power in Angola. The armed activities of SWAPO fighters particularly in the southern parts of Angola resulted in cross-border military operations by South African forces. These were stationed close to the Angolan border on Namibian territory, but also



Africanist Congress of Azania (PAC)–recognized by the AU and the African National Congress (ANC) in South Africa; and the Zimbabwe African People’s Union (ZAPU)—recognized by the AU and the Zimbabwe African National Union (ZANU).20 Once the independence of the territories for which

they fought was achieved, the majority of these movements were transformed into political parties.21 However, along with the aforementioned movements, which lost their momentum after achieving their primary goal, there are other movements in place in Africa, which are fighting not for independence from European colonial extended their presence and military operations to the southern parts of Angola. These interventions together with South African defiance by retaining its system of apartheid gave rise to the adoption of a mandatory and universal arms embargo against South Africa by the UNSC under Chapter VII UN Charter in 1977 (UNSC Res 418 [1977] [4 Nov. 1977]).”).

20. For the discussion of the importance played by women in the fights of the African national liberation movements, see Muriel Tillinghast & Patricia McFadden, Women and National Liberation Movements, 2 YALE J. L. & LIBERATION 1, 4 (1991) (“Women in ZANU . . . and ZAPU . . . and now in the African National Congress of South Africa, wielded weapons. A very important consequence of their participation in this particular sphere of African anti-colonial resistance is that, when women bear arms, they explode many of the myths which frequently dictate how women should struggle . . .African women have the right to be part of the decision-making process. They have worked and struggled for the right to sit side by side with men.”) For more about the participation of women in the Casamance events, see Aissatou Fall, Understanding the Casamance Conflict: A Background, KAIPTC MONOGRAPH No. 7 (Dec. 2010), at 16 (“The involvement of women in the ongoing events [in Casamance] meant two things: First, it reflected a refusal to see their children being killed, and secondly the will to prove that they were determined people, capable to play their devoted role in the society.”). For a list of movements of national liberation in Africa, see HIGGINS, supra note 4, at 37. For the discussion of freedom fighters and national liberation prior to 1949, see id. at 14 (“Prior to 1949, ‘freedom fighters’ were largely dealt with under the banner of municipal law. The only concession made to ‘combatants’ in wars of national liberation e.g. treatment analogous to prisoners-of-war in the event of capture, was at the total discretion of the parent State, and was not always forthcoming. By 1949, there was, therefore, an obvious need for a change in international law regarding non-international conflicts and indeed, wars of national liberation.”).

21. We can consult the relative websites to be acquainted with the current activities of the parties in question. For instance, see the relative websites of the MPLA, available at http://www.mpla.ao/ (last visited Sept. 10, 2015); PAC, http://www.pac.org.za/ (last visited Sept. 10, 2015); SWAPO Party of Namibia, http://www.swapoparty.org/ (last visited Sept. 10, 2015) (new name of SWAPO); ZAPU, http://www.zapu-24.com/ (last visited Oct. 18, 2015).



powers, but for more autonomy, if not independence, from the African states to which they currently belong.

It is this framework that our analysis has to be contextualized. Even today in Africa, there are fifty-four countries independent from the influence of their former colonial countries (at least theoretically), and there are still instances of national liberation movements fighting for the independence of several territories in the continent. That is why this Article remains topical: it examines a phenomenon that one might consider anachronistic but is actually still “alive,” because there are still “freedom fighters” in Africa. That reason is why this article is going to analyze the situation in Casamance, the region in southern Senegal enclosed between The Gambia to the north and Guinea-Bissau to the south.

To start, it is important to point out that in the 20th

century, the region defined as “Casamance” has often been subjected to administrative reorganizations. Consequently, the geographical term “Casamance” has often been used in an unclear way to define the borders of the region. The ambiguity surrounding the exact definition of the area called “Casamance” has been exploited by both the central government of Senegal and the liberation movement to promote their agenda in the conflict.22

Thus, this paper analyzes the role of the members of the MFDC. This movement was defined in a 1998 American report as a “[c]landestine, armed separatist movement which has been operating since 1982. The movement advocates the secession of the Casamance region in southern Senegal.”23

In effect, it is unclear that the MFDC could qualify itself as a political party representing a specific region of Senegal, given that both the 1963 (Article 3) and the 2001 (Article 4) Constitutions of Senegal excluded the formation of political parties with an ethnic or a regional

22. Ferdinand De Jong & Genevieve Gasser, Contested Casamance: Introduction, 39 CAN. J. AFR. STUD. 213, 225 (2005).

23. Bureau of Citizenship and Immigration Services, U.S. Dep’t. of Justice SEN99001.RIC, Senegal: Questions about the Mouvement des Forces Démocratiques (MFDC) in Senegal (1998) available at http://refworld.org/doid/3ae6a6a710.html (last visited Oct. 22, 2015).



identity.24 Yet it is still debated whether the MFDC, in its original intentions in 1947, rallied for real independence or for a mere promotion of the interests of the region in the framework of Senegal.25 The latter hypothesis seems to be substantiated by the fact that, for instance, Emile Badiane in 1954 joined the Bloc Démocratique Senegalais (BDS) headed by Léopold Senghor. In so doing, Emile Badiane contributed to the dissolution of the original MFDC that was resurrected in 1982. According to separatists, after that, Senegalese President Léopold Senghor did not keep his word to concede independence to Casamance.26

24. See CONSTITUTION DU 7 MARS 1963, Titre Premier, art. 3 (Sen.) (“Les partis politiques concourent à l’expression du suffrage. Ils sont tenus de respecter la Constitution ainsi que les principes de la souveraineté nationale et de la démocratie. Il leur est interdit de s’identifier à une race, à une ethnie, à un sexe, à une religion, à une secte, à une langue ou à une région. Les conditions dans lesquelles les partis politiques sont formés, exercent et cessent leurs activités, sont déterminées par la loi.”) [Political parties contribute to the expression of suffrage. They are required to respect the Constitution and the principles of national sovereignty and democracy. They are prohibited from identifying race, ethnicity, gender, religion, a sect, a language or a region. The conditions under which political parties are formed, exercise and cease their activities, are determined by law.]; see also CONSTITUTION DE LA REPUBLIQUE DU SENEGAL DU 22 JANVIER 2001, Titre Premier, art. 4 (“Les partis politiques et coalitions de partis politiques concourent à l’expression du suffrage. Ils sont tenus de respecter la Constitution ainsi que les principes de la souveraineté nationale et de la démocratie. Il leur est interdit de s’identifier à une race, à une ethnie, à un sexe, à une religion, à une secte, à une langue ou à une région. Les conditions dans lesquelles les partis politiques et les coalitions de partis politiques sont formés, exercent et cessent leurs activités, sont déterminées par la loi.”) [The political parties and coalitions of political parties contribute to the expression of suffrage. They are required to respect the Constitution and the principles of national sovereignty and democracy. They are prohibited from identifying race, ethnicity, gender, religion, a sect, a language or a region. The conditions in which political parties and coalitions of political parties are formed, exercising and cease their activities, are determined by the law.].

25. Michael C. Lambert, Violence and the War of Words: Ethnicity v. Nationalism in the Casamance, 68 J. INT’L AFR. INST. 585, 591–92 (1998). See also infra Part 3.

26. MAKHTAR DIOUF, SÉNÉGAL : LES ETHNIES ET LA NATION 123; see also Amnesty Int’l, Senegal: Time to Live up to Promises 6, AI Index AFR 49/001/2013 (Mar. 2013), available at http://www.refworld.org/docid/51875ca14.html (last visited Oct. 18, 2015) (“The Casamance conflict is between the Senegalese government and the Democratic Forces of Casamance Movement . . .[,] an armed opposition group seeking independence for their region in southern Senegal since



Finally, this Article analyzes whether the MFDC members, as members of a national liberation movement,27 deserve the status of refugees when they apply for asylum,28 particularly in other African countries. Unfortunately, the statistics on the number of people from Casamance applying for refugee status are rather fragmented and, to date,29 there are no statistics available exclusively concerning MFDC members.30 The most recent statistics indicate that at the end of 2013,

1982.”) (emphasis added). 27. See Carlo Panara, Casamance Conflict ¶ 29, in MAX PLANCK

ENCYCLOPEDIA OF INTERNATIONAL LAW, available athttp://0opil.ouplaw.com.innopac.up.ac.za/search?sfam=&q=casamance+conflict&prd=EPIL&searchBtn=Search (last visited Sept. 10, 2015). (“At least until the Peace Agreement [the MFDC] is . . . to be regarded as a national liberation movement. As such, the MFDC has (or had) a limited international personality: this has allowed its leaders to negotiate and to sign the ceasefires and, more recently, the Peace Agreement, with the Senegalese government. This places the MFDC under a legal obligation to respect the rules of ius in bello.”) One of the last ceasefires has been called by one of the leaders of MFDC [Ousmane Niantang Diatta] in April 2013. See Macky Sall, Au Sénégal, un chef rebelle de Casamance appelle à un cessez-le-feu, available at http://www.rfi.fr/afrique/20130417-senegal-casamance-cessez-le-feu-mfdc-santegidio-ousmane-niantang-diatta-/ (last visited Oct. 1, 2015).

28. About the difference between the concepts of “refugee” and “asylum,” see Gino J. Naldi & Cristiano d’Orsi, The Multi-Faceted Aspects of Asylum-Law Applicable to Africa: Analysis for Reflection, 36 LOY. L.A. INT’L & COMP. L. REV. 115, 119 (2014) (“The important point to note is that the concept of asylum is broader than that of refugee; unlike refugee status, a well-founded fear of persecution is not a prerequisite for those seeking asylum since the root cause may well be conflict . . . or other circumstances that do not satisfy the legal definition of persecution.”).

29. Feb. 15, 2015.30. See Gail Hopkins, Casamance Refugees in The Gambia: Self-

Settlement and the Challenges of Integration 4 POL’Y DEV. & EVALUATION SERVICE, U.N. HIGH COMM’R FOR REFUGEES, RESEARCH PAPER NO. 220, available at http://www.refworld.org/docid/4e980c522.html (last visited Sept. 10, 2015) (“According to registration data, there were 7,890 registered refugees from Casamance in The Gambia at the end of 2007 (UNHCR-WFP, 2009). This had risen to 8,241 in March 2010 (UNHCR, 2010). Of this, the number of registered refugees in rural areas had fallen slightly (7,290/6,494), whilst the number in urban areas had risen (600/1747). No assessment mission has been conducted since December 2009, but The Gambia Immigration Department (GID) and GAFNA officers constantly log new refugees who arrive at border villages. Between mid-January 2011 and mid-March 2011, approximately 700 new refugees arrived. These figures do not include those who are unregistered due to absence at the time of the registration exercise, such as those visiting family, those who were in the bush gathering firewood, those travelling to hospital. Estimates by local



The Gambia hosted 9,025 refugees from Senegal, with a major inflow of 680 in 2012, while in Guinea-Bissau there were 8,845 refugees from Senegal. These refugees were assisted by UNHCR and during this period no voluntary repatriations occurred. These statistics indicate that the situation in Casamance is complex, resulting in protracted displacement for many Casamance refugees.31

THE CONFLICT IN CASAMANCE

Casamance was a former Portuguese colony. The Portuguese, however, ceded this territory to France through a convention signed in 1886.32 French colonial rule continued until 1960, despite much resistance from the local population.33 In 1960, Senegal became independent and sovereign following the dissolution of the former Mali Federation, which was composed of the Republic of Senegal and the Sudanese Republic (formerly French Sudan that adopted the current name of Mali after the dissolution), both former French colonies. On August 20, 1960, the Senegalese Assembly, after a sequence of political crises,34 passed a decree terminating its

donors and NGOs of the total number of Casamance refugees (registered and unregistered) living in The Gambia is thought to be between 10,000 and 11,000.”). Along with asylum-seekers, the conflict of Casamance has created also a number of IDPs in Senegal. See Martin Evans, The Suffering is Too Great’: Urban Internally Displaced Persons in the Casamance Conflict, Senegal, (2007) 20 J. REFUGEE STUD. 60, 82 (“Situations of protracted conflict and displacement such as that in Casamance raise policy questions about when the state of ‘displacement’ ends and the displaced can be considered to be fully integrated.”).

31. U.N. HIGH COMM’R FOR REFUGEES, UNHCR STATISTICAL YEARBOOK 2012, 12th Edition 159 tbl. 18, available at http://www.unhcr.org/52a723f89.html (last visited Sept. 12, 2015). For the figures about the flow, see U.N. HIGH COMM’R FOR REFUGEES, UNHCR STATISTICAL YEARBOOK 2013, 13th Edition 98 tbl. 5, available at http://www.unhcr.org/54cf9bc29.html (last visited Sept. 12, 2015).

32. Mamadou Diouf, Between Ethnic Memories & Colonial History in Senegal: The MFDC and the Struggle for Independence in Casamance, in ETHNICITY AND DEMOCRACY IN AFRICA (Bruce Berman et al. eds, Jonathan M. Sears trans., 2004), 235–36 (“Whether autochthonous territory or protectorate under the supervision of the colony of Senegal, the Casamance was ceded to France by Portugal by the Convention of 12 May 1886.”).

33. See Fall, supra note 20, at 5.34. See Donn M. Kurtz, Political integration in Africa: the Mali



membership in the Mali Federation and rejecting any additional competence over it by the Federation.35 However, Casamance was administered separately from the rest of Senegal from 1854 to 1939 under direct authority of the governor of French West Africa, and only integrated with it towards the end of the colonial period.”36

As everywhere in Africa, the principle that found application in Senegal was the “Uti possidetis doctrine,” which provides that states emerging from decolonization shall be granted the colonial administrative borders held at the time of their independence.37 This was also claimed

Federation, 8 J. MOD. AFR. STUD. 405, 406 (1970) (“The spirit of co-operation was short-lived, for the winter and spring of 1960 saw the beginning of serious problems for the Federation. Disagreement occurred over the powers of the federal government, the distribution of offices, and the Africanisation of the civil service.”).

35. Rosalyn Cohen, Legal problems Arising from the Dissolution of the Mali Federation, 36 BRIT. Y.B. INT’L L. 375, 376, fn. 1, (1960) (“Differences of opinion between the Sudanese and Senegalese were already apparent at the Constitutive Congress of the Party of African Federation in July 1959. These continued throughout the Executive committee meetings in September 1959, and were manifested again at the Inter-State Conference of April 1960. The final crisis was precipitated by the refusal of the Senegalese Minister of Defense of the Federation to countersign the appointment of the General Chief of Staff of the Army selected by the Sudanese Premier of the Government of the Federation.”); see also Kurtz, supra note 34, at 421 (“The failure of this integration effort is related to the central characteristic of the African political scene. African societies are probably as highly politicized as any others in the world; having been denied full political sovereignty and power throughout the colonial period, African elites do not yet seem ready or willing to give up any of that hard-won authority.”).

36. Fall, supra note 20, at 6. 37. Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the

Borders of New States, 90 AM. J. INT’L L., 590, 595 (1996) (“The choice for Africa as decolonization approached was clear: either a wholesale restructuring of borders to rectify past injustices or acceptance of existing lines as the basis for new states. Pan-Africanists urged the former; but the European states and the indigenous elites opted for maintaining extant lines as the most feasible method for speedy decolonization. One year after the formation of the Organization of African Unity in 1963, with most of the continent decolonized but several territorial disputes already brewing, the OAU’s Heads of State and Government pledged in the Cairo Declaration ‘to respect the frontiers existing on their achievement of independence.’ . . . Such a policy would serve an external and an internal purpose: externally, it would seek to prevent irredentist tendencies by neighbors from turning into territorial claims and the possible use of force. Internally, it would give clear notice to ethnic minorities that secession or adjustment of borders



under Article 3 of the 1963 Constitutive Act of the Organization of the African Unity,38 and, later, by Article 4(b) of the 2000 Constitutive Act of the African Union (“AU”).39 However, both Portuguese and French colonizers have considered the Casamance culturally, economically, politically, and socially different from the rest of Senegal. On the other hand, “[f]ew in Senegal would argue that the Casamancais do not have a valid claim to a distinct identity within Senegal.”40

With help from Guinea-Bissau,41 the Casamance conflict put the MFDC at the forefront of Senegal. In the

was not an option.”) (citation omitted); see also Organization of African Unity, Resolutions Adopted by the First Ordinary Session of the Assembly of Heads of State and Government held in Cairo, UAR, from 17 to 21 July 1964, Border Disputes among African States, AHG/Res. 16(I) (“The Assembly of Heads of State and Government meeting in its First Ordinary Session in Cairo, UAR, from 17 to 21 July 1964, . . . 2. SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.”).

38. Charter of the Organization of African Unity art. 3, May 25, 1963, 479 U.N.T.S. 39, 74 (“The Member States, in pursuit of the purposes stated in Article II solemnly affirm and declare their adherence to the following principles: . . . 3. Respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.”). See Lambert, supra note 25, at 597 (“African leaders rejected the idea that their new nations should correspond to ancient kingdoms and other types of pre-colonial political and cultural formations. They unambiguously affirmed that African nationalism should be territorial and decidedly not ethnic.”).

39. Organization of African Union, Constitutive Act of the African Union art. 4, Jul. 11, 2000, 2158 U.N.T.S. 33, 36 (“The Union shall function in accordance with the following principles: . . . (b) respect of borders existing on achievement of independence.”).

40. See Lambert, supra note 25, at 586. 41. Martin Evans, Briefing: Senegal: Wade and the Casamance Dossier,

99 AFR. AFF. 649, 649, 653 (2000) (“Crucial to the dynamics of the Casamance conflict is the situation in the region’s southern neighbor, Guinea-Bissau, long accused by Dakar of harboring and supporting the MFDC. While Bissau has repeatedly denied such claims, it is known that, since the early stages of its insurgency, the MFDC has operated from along the porous, forested, international border, increasingly from its southern side. . . Recent events show that it is increasingly difficult to distinguish between the MFDC and opportunistic elements –bandits, from the Guinea-Bissauan military or otherwise-operating under the cover of rebellion.”); see also Fall, supra note 20, at 30 (“Historically, the most important arms supplier to the maquis [guerrilla fighters] has been the Bissau-Guinean military, elements of which have been sympathetic to the MFDC, particularly through cross border kin and ethnic ties, and which has more generally suffered from unreliable salary payments.”).



early 1980s, “the MFDC call[ed] for the political independence of the region, claiming that Casamance was never part of Senegal,”42 and presented a number of complaints, including the allegation that the Senegalese government had constantly been unsuccessfully investing in the economic and educational development of the Casamance,43 and, the promotion of a culture model imposed by Dakar to the detriment of the local traditions and customs.44 In addition, the Casamancais accused Dakar of “internal colonialism,” with the posts of governor and deputy-governor of the region often assigned to authorities not originating from the region,45 and complained about several laws regarding new land policies (such as the 1964 National Domains Act) that, in the opinion of the Diolas, inhabitants of the region, 46 further alienated them.47

42. De Jong & Gasser, supra note 22, at 214.43. Id.; see also Fall, supra note 20, at 12 (“Lack of investment in

Casamance has led to a slowdown of development in the South and has increased the problems of local people in connection with the labor market.”); id. at 13 n. 29 (“[A]t the beginning of the 1980s, . . . there was only one secondary school whose graduates were capable of going to higher studies. The educational policy of the authorities was regarded by the inhabitants of the south as being discriminatory, especially in a situation where graduating from a college in the capital provided Senegalese youth from the provinces with an opportunity to make a career in Dakar.”).

44. See Krzysztof Trzcinski, Origins of Armed Separatism in Southern Senegal, 55 AFRICANA BULL. 169, 174 (2005).

45. Fall, supra note 20, at 11; see also Wagane Faye, The Casamance Separatism: From Independence Claim to Resource Logic 1–2 (Jun. 2006) (Master of Arts in Security Studies dissertation, Naval Postgraduate School) (“[T]he MFDC articulates . . . grievances including: appropriation, by local authorities representing the central government, of the region’s lands, at the expense of local populations; imposition of laws which do not take into account the customs and traditions of the region’s populations; victimization of Casamance’s ethnic groups through cultural contempt; disadvantage suffered by the region of Casamance in the area of investment; and the absence, for several decades, of natives of Casamance from local government in the region.”).

46. See Diouf, supra note 32, at 232 (stating that the name “Diola” is of “Malinke” origin and means “Those (from the country) of the waters.”).

47. See Gerti Hesseling, Urban Land Conflicts and the Administration of Justice in Ziguinchor, Senegal, 3 NETHERLANDS REV. DEV. STUD. 13, 14-15, 27 (1990–91) (“The Loi relative au domaine national was adopted by the Senegalese legislature in 1964. It defines ‘national land’ (domaine national) in a negative sense, namely as all land that is not registered in the land books, i.e. land that is not “State property” (domaine de l’Etat) and for



The conflict in Casamance is primarily “a separatist conflict, one of the rarest of the [African] continent.”48 Nevertheless, at the same time, it is considered one of the most marginal in Africa, because the conflict “has not disrupted sub-regional stability in a way comparable to other conflicts on the continent . . . . Although the Casamance conflict remains the longest civil conflict in West Africa, it is relatively unknown to the general public”49 and it has often “been relegated to the margins of the national debate” as well.50

As previously mentioned,51 just after Senegal gained its independence, Léopold Senghor, the first President of the independent state, had promised that Casamance would attain independence from Dakar twenty years following Senegal’s independence from France, according to the separatists.52 Although there is no final proof that this promise had been made, the first public protests took place in Ziguinchor (Casamance) on December 26, 1982, to which the Senegalese regime reacted with military intervention and political repression.53 However, before the 1990s, the nationalist claims of the population in

which no private title exists. All land, which was held under the customary land law, passed into the control of the State. The State does not consider itself to be the owner but merely the custodian of this land; individuals only have ‘rights of use.’ This means that, among other things, the land may not be sold; only the buildings and other investments (wells, orchards and other such improvements) are transferable. . . . [I]t must be said that a policy focused on the ideology of legal centralism can have negative consequences in the long run, because it denies not only the creativity of the city-dweller in finding security of land and housing conditions, but also the existing social relationships and traditional normative structures and processes relating to urban land”.); see also Martin Evans, Sénégal: Mouvement des Forces Démocratiques de la Casamance (MFDC) 2 (Afr. Programme, Armed Non-State Actors Project, Briefing Paper AFP BP 04/02, 2004).

48. Fall, supra note 20, at 4. 49. De Jong & Gasser, supra note 22, at 217.50. Id. at 218. 51. Supra Part 2.52. See Lambert, supra note 25, at 591 (“Badiane [one of the founders

of the MFDC in 1947], it is alleged, agreed that Casamance would enter the post-independence era as part of Senegal provided that Senegal would recognize the independence and sovereignty of the Casamance in twenty years.”).

53. See Panara, supra note 27, ¶¶ 5–7 (showing how protests began and how the government reacted).



Casamance were substantially hidden from public sight, mainly “disseminated by word of mouth and through banned publications,”54 although “historical evidence indicates that, during the colonial period, the pro-independence sentiment among Europeans in Casamance was strong.”55 For the central government, the claims of independence of Casamance have been considered as a “fait nouveau” because the original MFDC (the one founded in 1947) emerged to fight colonialism, not to separate Casamance from the rest of Senegal.56

54. Lambert, supra note 25, at 588.55. Id. at 592 (“Not only is the argument for Casamance independence

legitimated in terms of the political, social, and economic history of the region, but also it traces its origins to Europeans who lived and worked in the Casamance during the colonial period.”).

56. ACHPR, La Mise en Oeuvre de la Charte Africaine des Droits de L’Homme et des Peuples par la Republique du Senegal 28 (Jan. 1, 2003) [hereinafter Senegal 2003 Periodic Report], available at http://www.achpr.org/files/sessions/34th/state-reports/3to7-2003/achpr34_staterep_senegal_2003_fra.pdf, (last visited Sept. 12, 2015) (“Aussi, au sein de ce peuplement de la Basse Casamance, il n’existe et n’a jamais existé de politiques ou de pratiques tendant à exclure , à restreindre ou à préférer telles ethnies à telles autres, au sens des articles premiers de la Convention sur l’élimination de toutes les formes de discrimination raciale et de la loi 81-77 du Sénégal portant définition et répression de la discrimination sous toutes ses formes. Cette vision de la question est corroborée par l’histoire même du Mouvement des Forces Démocratiques de Casamance (MFDC), qui, à l’origine, avait pour objectif la lutte contre la colonisation et jamais le séparatisme avec le reste du Sénégal. Cela se justifie aussi par l'appartenance ethnique de ses fondateurs Emile Badiane, Ibou Diallo, Assane Seck qui étaient respectivement d’ethnies joola, peulh et wolof. Il y a enfin, le lieu de création de ce mouvement, Sédhiou, localité située en Moyenne Casamance à prédominance mandingue. En effet, dans l’histoire du Sénégal indépendant, les revendications indépendantistes casamançaises sont un fait nouveau. Ainsi c’est en 1980 lors d’une rencontre à la Chambre de Commerce de Dakar, le 23 août 1980, que l’Abbé Diamacoune a déclaré « De quel droit la France a t-elle, à l’indépendance du Sénégal, rattaché la Casamance à ce pays sans que les intéressés ne soient consultés?». La Casamance disait- il « n’a rien à voir avec le Sénégal au plan historique, économique et ethnique, c’est uniquement pour des raisons de commodité qu’elle a été administrée avec le Sénégal, mais c’était un protectorat ».”) [Also, within this stand of Basse Casamance, it doesn't exist and never existed policies or practices to exclude, restrict or prefer such ethnic groups to such other, within the meaning of articles first of the Convention on the elimination of all forms of racial discrimination and the Act 81-77 in Senegal on definition and suppression of all forms of discrimination. This vision of the question is borne out by history even of the movement of Forces démocratiques de Casamance (MFDC), which, originally, was aimed at the fight against colonization and never separatism with the rest of Senegal. This is also



One of the strongest arguments against the separatism of the region is that the protests in Casamance were raised only for economic inequities, and that the use of violence to show dissatisfaction was only due to the Diola temperament. In practice, it would be in the nature of Diola people, who were historically allergic to centralized political institutions,57 to resist any possible domination by any hierarchical political system, either French or Senegalese.58 In the end, according to the central government, while the MFDC is a Diola organization, Casamance is also home to a multiplicity of “other ethnic groups whose rights as Senegalese citizens should be respected and protected.”59

In this sense, the 1993 “Charpy Report” drafted by Jacques Charpy, a former director of the French West Africa archives in France, seemed to endorse the point of view of the central government—and it was rejected by the MFDC for this reason. The report affirmed that “Casamance did not exist as an autonomous region before colonization . . . The problem that Casamance posed to French colonizers was a matter of administration[,] not a problem of government,”60 because France used to define, “Senegal and its justified by ethnicity incorporators Emile Badiane, Ibou Diallo, Assane Seck, who respectively were ethnic joola, peulh and wolof. There's finally, instead of creation of this movement, Sédhiou, locality averaged Casamance predominantly Mandingo. Indeed, in the history of independent Senegal, the Casamance separatist claims are a new fact. Thus it is in 1980 at a meeting at the Chamber of Commerce of Dakar, on August 23, 1980, father Diamacoune said “what right the France has t - it, to the independence of Senegal, attached the Casamance in this country without that interested parties be consulted?” Casamance said - it “has nothing to do with Senegal in historical, ethnic and economically, it is only for reasons of convenience that it was administered with Senegal, but it was a protectorate.”].

57. See Aissatou Fall, Understanding the Casamance Conflict: A Background, KAIPTC Monograph No. 7 (Dec. 2010).

58. Lambert, supra note 25, at 593 –94; id. at 593 (“By locating the roots of the current movement in the violent history of Casamance, attention is drawn away from questions about the relationship of the Casamance to Senegal while under French rule and toward a particular Diola trait, a temperament that Ousmane Ngom calls an allergy to central authority.”).

59. Id. at 595. But see id. at 599 (“[W]e should . . . be mindful of the fact that ethnicity is . . . a powerful weapon used by nation states to delegitimize and frustrate the political objectives of its minority peoples.”).

60. Fall, supra note 20, at 24.



Dependant Territories”, as all the regions between Cap Blanc and the shores of Sierra Leone, a definition that includes Casamance.61 To try to mitigate the differences between the ethnic groups in Senegal, a national conference on the “cultural convergences” was organized in Kaolack in 1994, with a clear intention to show that Casamance was indeed part of Senegal, and to show that Senegalese people existed before the Senegalese

61. Id.; see also Senegal 2003 Periodic Report 29 (“Cependant selon les termes de son témoignage historique sur la Casamance, sollicité d’un commun accord par le MFDC et le Gouvernement sénégalais, l’historien Français Monsieur Jacques Charpy, Conservateur Général du patrimoine, a déclaré le 21 Décembre 1993 à Ziguinchor que : « La Casamance n’existait pas en tant que territoire autonome avant la colonisation. Malgré ses caractères géographiques originaux, son éloignement de Saint Louis (Capitale de l’ancienne Afrique Occidentale Française) et les conséquences de l’enclave gambienne, les territoires situés entre la Gambie et la Guinée Bissau ont toujours été au temps de la colonisation française administrés par le Gouvernement du Sénégal». En effet, selon toujours Mr. Charpy «lorsque après l’Empire, en 1817, la France recouvre le Sénégal sur les Anglais, les instructions du Gouvernement français définissent le Sénégal et Dépendances comme la partie de la côte d’Afrique comprise entre le Cap Blanc et les rivières de Sierra Léone comprenant notamment la rivière de Casamance ». Par la suite, « avec l’extension des conquêtes sur le Niger et dans le Golfe de Guinée, le Gouvernement juge nécessaire de reconstituer une unité d’action et donc une autorité suprême en Afrique de l’Ouest». . . . Selon toujours ce témoignage, au moment où le Sénégal se prépare à devenir indépendant, dans les limites territoriales fixées par le colonisateur, beaucoup parmi les Sénégalais regrettent la balkanisation de l’AOF, mais personne ne propose un nouveau découpage territorial. Seuls quelques vieux saint louisiens, souvent descendants de familles métissées, manifestent leur regret de voir qu’une page de leur histoire franco-africaine s’achève, avec la perte pour leur ville tricentenaire de son statut de capitale coloniale. Aucune région du Sénégal n’émet le souhait d’autonomie.”) [However, under the terms of his testimony, historically in the Casamance, solicited by common agreement between the MFDC and the Senegalese Government, the French Mr. Jacques Charpy, conservator General of heritage historian, said on December 21, 1993 in Ziguinchor that: “Casamance did not exist as a stand-alone territory prior to colonization. Despite its original geographical characteristics, its distance from St. Louis (capital of the former French West Africa) and the consequences of the Gambian enclave, the territories situated between the Gambia and Guinea Bissau have been at the time of the French colonization administered by the Government of Senegal.” Indeed, as Mr. Charpy said, “when after the Empire, in 1817, the France covers Senegal on the English, the French government instructions define Senegal and dependencies as part of the coast of Africa between Cap Blanc and rivers of Sierra Leone including the Casamance River.” Subsequently, “with the extension of the conquests on the Niger and in the Gulf of Guinea, the



nation.62 After many years of harsh confrontation, “[o]n 30

December 2004, Secretary-General Diamacoune Senghor of the MFDC signed a peace treaty with the Senegalese Minister of Home Affairs Ngom,”63 with the involvement of Atika (“warrior” in Diola language, the military wing of the MFDC playing the role of protagonist),64 and other countries, such as Mauritania and Guinea-Bissau.65 According to Ferdinand de Jong and Geneviève Gasser,

Government deems it necessary to reconstruct a unity of action and therefore a supreme authority in West Africa.” . . . Always this testimony, at the time when Senegal is preparing to become independent, within the territorial limits set by the colonial power, many of the Senegalese people regret the Balkanization of the AOF, but nobody offers a new territorial division. Only a few old Saint Gonzague, often descendants of mixed families, express their regret to see that a page in their Franco-African history ends, with the loss to their Tercentenary its status as colonial capital city. No region of Senegal emits the desire for autonomy.].

62. Ferdinand De Jong, A Joking Nation: Conflict Resolution in Senegal, 39 CAN. J. AFR. STUD. 389, 404 (2005); see Senegal 2003 Periodic Report 29 at 406 (“[T]he theorists [of the ideology of cultural convergences] explore the existence of Serer patronyms among the Diola. The most striking example of such exchange is the name of the leader of the MFDC, Father Diamacoune Senghor. Having a Serer patronymic, his Diola identity seems awkwardly impure. Could there be a more convincing fact to demonstrate that the Diola insurgents are in fact part of a Senegalese nations.”).

63. De Jong & Gasser, supra note 22, at 214.64. Lambert, supra note 25, at 585. (“Atika was formed in the wake of

this event. Even though the movement restricted itself to sporadic and isolated incidents of terrorism throughout the 1980s, by the decade’s end its military wing had become a well-trained and disciplined army of estimated 300-600 soldiers. As the tenth anniversary of the 1982 uprising approached, the MFDC pressed its demands for the independence of the Casamance: in November of 1989, its leaders distributed a tract stating that they would declare the region’s independence from Senegal on 25 December. Christmas passed without incident. But shortly thereafter the MFDC made its presence known through a vigorous and bloody military campaign.”); see also Fall, supra note 20, at 18 (“Following internal divisions, Atika was further split into Front Nord and Front Sud, following the signature of the first ceasefire agreement between Sidy Badji (the founder of Atika) and the Government of Senegal on 31 May 1999 in Bissau. Supporters of Sidy Badji grouped under the Front Nord and ostensibly abiding by the Bissau Accord, retired from military action.”); Evans, supra note 47, at 5–6; Panara, supra note 27, ¶ 15 (“The difficulties of this Peace Agreement are that it frustrates the aspirations to autonomy of many Casamancais combatants, and that not all combatants respond to the MFDC leadership. Among the difficulties faced by the Dakar government over the years, and also on this occasion, was finding a valid interlocutor to negotiate peace with. In fact the MFDC is not only split into a political and an armed wing, but the armed wing itself is split into various



Senegalese President Abdoulaye Wade arrived after the signature of the peace treaty to show that this was not a treaty agreed by the heads of two sovereign states, but between the Minister of Home Affairs of a legitimate state and the head of a movement of rebels.66

In addition, it is worth noting that in the peace treaty, although the MFDC solemnly abandoned the idea to use the arms and general violence to pursue its political objectives, no section of the agreement declared that the

factions: a) the Front Nord, that controls the north-west of the Bignona department and ceased the armed conflict in 1991; b) the Front Sud, settled in the south-west of the Ziguinchor region, and officially loyal to Abbé Diamacoune Senghor; c) the hardline Front Sud, settled in the south-east of the Ziguinchor region, which is reluctant to any political compromise with Dakar and pursues the independence of the region. The internal divisions of the independence movement, which were worsened by the recent death of the charismatic Casamancais leader Abbé Diamacoune Senghor in January 2007, might undermine the success of the peace process.”).

65. ACHPR, Rapport Périodique : Sur la Mise en Oeuvre de la Charte Africiaine des Droits de L’Homme et des Peuples ¶ 7 (Apr. 25, 2013), available at http://www.achpr.org/files/sessions/53rd/state-reports/3rd-2004-2013/periodic_report_2004_2013_fr.pdf [hereinafter Senegal 2013 Periodic Report] (last visited Sept. 10, 2015) (“L’Accord Général de Paix du 30 décembre 2004 signé entre le Gouvernement du Sénégal et le Mouvement des Forces Démocratiques de la Casamance (MFDC) a considérablement pacifié la situation même s’il est encore regrettable de constater, qu’à intervalle irrégulier, des violences sont commises par des bandes armées isolées et que des personnes sont victimes des mines antipersonnel.”) [The General peace agreement of December 30, 2004, signed between the Government of Senegal and the movement of Democratic Forces of Casamance (MFDC) has greatly pacified the the situation even if it is still regrettable, at irregular intervals, violence committed by isolated armed gangs and people are victims of anti-personnel mines situation even if it is still regrettable, at irregular intervals, violence committed by isolated armed gangs and people are victims of anti-personnel mines.]. About the content of this agreement, see Panara, supra note 27, ¶ 14 (“The Peace Agreement provides, inter alia, for a) the rehabilitation of the former combatants (Art. 3); b) the clearance of landmines; and c) the economic development of the region (Art. 4). It does not entail any provision on the autonomy of the region, even though the preamble explicitly recognizes ‘the justness of the sense of frustration of a part of the Casamancais population’ and the need for ‘remedial measures’ consisting of a plan for development specific to this ‘natural region’.”).

66. De Jong & Gasser, supra note 22, at 214. See HIGGINS, supra note 4, 5–6 (“A rebellion comes within the exclusive remit of the sovereign State, even if a state of rebellion is recognised by a third State. Rebels can legally be treated as criminals under domestic law and, if captured, do not enjoy prisoner of war status. Any assistance from a third State is prohibited by traditional international law as unlawful intervention and interference with



movement rejected the political struggle to make Casamance independent.67

This peace treaty was preceded by discussion in 2003. They were organized by the MFDC and they left a mark in the conflict because, for the first time, the rebel government comprised the term ‘independence’ in the notion of ‘political, cultural and socio-economic emancipation’ of the region,68 while declaring at the same time the military failure of the uprising.69 Essentially, one of the most debated subjects in these peace talks has been the problem of transportation faced by the inhabitants of Casamance, given the difficult connection between this area and the rest of Senegal.70

On July 6, 2004, the Senegalese National Assembly voted an amnesty for any act committed under the rebellion since June 1, 1991.71 On that occasion, human State sovereignty, thus rebels have no protection under international law. . . . The criteria of rebellion are, however, quite vague and uncertain and the term 'rebellion' can cover many instances of minor conflicts within a State from violent single-issue protests to a rapidly suppressed uprising.”) (emphasis added).

67. Panara, supra note 27, ¶ 16. 68. Fall, supra note 20, at 26.69. Id. at 27 (“Not only was the armed struggle condemned, but the

idea of independence was abandoned. Turning back to more than twenty years of commitment to the struggle, the charismatic leader of the rebellion (D. Senghor) was talking about ‘our homeland Senegal’. The MFDC committed itself publicly to start negotiations instead of continuing the armed struggle.”) (citations omitted).

70. De Jong & Gasser, supra note 22, at 223. 71. Sénégal : LOI n° 2004-20 en Date du 21 Juillet 2004 Portant loi

d’Amnistie art. 1 [Law 2004-20 of July 21, 2004 on the Law Providing Amnesty],1, available at http://www.jo.gouv.sn/spip.php?article2519 (last visited Sept. 10, 2015) (“Sont amnistiées de plein droit, toutes les infractions criminelles ou correctionnelles commises depuis le 1er juin 1991, tant au Sénégal qu’à l’étranger, en relation avec les événements dans la région naturelle de la Casamance, que leurs auteurs aient été jugés définitivement ou non.”) [Are amnestied of right, all criminal offences or corrections committed since June 1, 1991, both in Senegal as abroad, in connection with the events in the natural region of Casamance, that their authors were considered permanently or not.]; see also Sénégal: LOI n° 91-40 du 10 Juillet 1991 Portant Amnistie [Law 91-40 of July 10, 1991 Providing Amnesty], available at http://www.refworld.org/docid/3ae6b50338.html (last visited Sept. 10, 2015); Senegal 2003 Periodic Report 29 (“[I]l faut souligner que le Gouvernement n’a ménagé aucun effort pour réaliser une paix durable dans cette partie du pays. C’est ainsi qu’en plus des différentes lois d’amnistie intervenues entre 1991 et 1993, il accepte les combattants du



rights advocates expressed their concern that this amnesty risked promoting impunity.72 At the same time, according to Martin Evans, the inhabitants of Casamance perceived that the central government should not have adopted any amnesty without attaining a final peace agreement from a united MFDC. In addition, the characterization of the term “crimes” appeared challenging. In the meantime, several elements of the MFDC at the communication of the adoption of the amnesty were outraged. In their common opinion, they had committed no crimes but merely acted to preserve their ‘homeland.’73

In one of his studies, however, Martin Evans posited “objectively” that independence for Casamance is “out of question” because of the lack of real support for the MFDC by the Casamancais and because of the frictions

MFDC en tant qu’interlocuteurs pour parler de cette paix.”) [It should be noted that the Government has spared no effort to achieve a lasting peace in this part of the country. Thus, in addition to the different amnesty laws between 1991 and 1993, he accepts the fighters of the MFDC as interlocutors to talk about peace.].

72. See Amnesty Int’l, Senegal: An Agenda for Human Rights: An Opportunity Not to Be Missed by the Authorities Elected in the March 2012 Presidential Election, AI Index AFR 49/004/2012 (June 10, 2012) available at http://www.refworld.org/docid/4fe418722.html (last visited Sept. 10, 2015) (“The two agreements signed between the Senegalese government and the MFDC were accompanied by a law of amnesty promulgated by the Senegalese President Abdoulaye Wade in July 2004. This law provided an amnesty for all offences committed during the internal conflict in Casamance since 1991, ‘whether the perpetrators have been definitively judged or not.’ In declaring an amnesty before taking any legal action against the soldiers of government forces and armed members of the MFDC responsible for serious human rights violations and abuses, President Abdoulaye Wade deprived hundreds of the victims of this terrible conflict and their families from their right to justice and redress, in violation of international standards. International law in fact prohibits granting amnesties, pardons and similar national measures of impunity in cases of war crimes, crimes against humanity, genocide, torture, extrajudicial executions and enforced disappearances. All amnesty laws must strictly comply with international law. In compliance with these same rules and principles, this law cannot cover the serious violations of human rights and fundamental freedoms protected by the regional and international instruments to which Senegal is bound, nor can it exonerate the perpetrators.”); see also Amnesty Int’l, supra note 26, at 6.

73. Martin Evans, Sénégal: Mouvement des Forces Démocratiques de la Casamance (MFDC) 2 (Afr. Programme, Armed Non-State Actors Project, Briefing Paper AFP BP 04/02, 2004).



among the different wings of the MFDC,74 further affirming that the MFDC’s demand for independence is “ill-formed and unrealizable.”75

With the purpose of delegitimizing the ambitions of MFDC, the central authorities of Senegal have often declared that the MFDC characterizes a mere ethnic community, the Diola. Senegal has claimed the constitution of a so-called “Diola Republic” that, according to Dakar, would comprise not simply Casamance but also regions of The Gambia, where the 1981 movement commanded by Kukoi Samba Sanyang defenestrated the former President Daouda Diawara, demonstrating to the people of Casamance that a change was possible.76 It included also regions of Guinea-Bissau,77 whose President in 2003 was praised by the President of the UN Security Council (UNSC) for his willingness in trying to find a peaceful solution to the ongoing conflict.78

However, the Diola population living in the rest of Senegal, Dakar included, has not historically engaged in the struggle for secession, preferring instead to promote the dialogue between the rebel factions and the central government.79 In addition, studies carried out in the early 2000s demonstrated that the MFDC rebels were not resisting their integration into the Senegalese society, but rather they were questioning the terms of their integration to a certain extent.80

Although the cultural differences between Casamance and the rest of Senegal are undeniable, the MFDC has often neglected the importance of cultural difference in its claims. Casamance is mostly populated by Diolas (3% of the entire population in the country—mainly

74. Id. at 16.75. Id. at 17. 76. Fall, supra note 20, at 15.77. Lambert, supra note 25, at 587. 78. U.N. Security Council, Statement by the President of the Security

Council, ¶ 7, U.N. Doc. S/PRST/2003/8 (Jun. 19, 2003) (“The Security Council welcomes the willingness of President Kumba Yala to host negotiations on the issue of Casamance and appeals to him to continue to cooperate constructively with the Government of Senegal in order to contribute to a solution of this issue.”).

79. De Jong & Gasser, supra note 22, at 218–19. 80. Id. at 220. (“Current scholarship suggests that that the integration

of the Diola in Senegalese society at large is not the product of coercion.”).



Animist/Christian)81 and lusophone, while the rest of the country, populated by different other ethnic groups, is mainly Muslim and francophone. The MFDC, and particularly its leader, Diamacoune Senghor, preferred to emphasize a territorial and historicized understanding of the nature of the nationalism in Casamance. The real issue of the claims for MFDC remains on the land of Casamance and in its history. In the MFDC’s view, particularly by Diamacoune Senghor’s, the French planned to administer the Casamance as an independent colony, not a region within the Senegal. In Diamacoune Senghor’s view, the French only failed to officially recognize the independence of Casamance, independence that was in their intention.82 According to him, these aspirations to independence from the rest of Senegal were shown, for instance, in the early 1900s, with protesters demanding a split from the rest of Senegal in 1914, and again in 1918 to William Ponty, Governor of Senegal, during his trips in Ziguinchor.83

During an exacerbation of the conflict in May 1990 where the Casamancais opposed the central government, thousands of Casamancais asylum-seekers were sheltered by cross-border ethnic kin in Guinea-Bissau and The Gambia, with Dakar accusing Banjul of serving as rear base and safe haven for the MFDC rebels.84 In addition, it has often been very difficult to distinguish between the MFDC militia and opportunistic actors, such as bandits from Guinea-Bissau acting under the cover of the rebellion, or mercenaries from Liberia and Sierra Leone.85

81. Senegal 2013 Periodic Report ¶ 82; see also Diouf, supra note 32, at 234. But see Evans, supra note 47, at 8 (“[r]eligious aspects of the conflict have been exaggerated.”).

82. Lambert, supra note 25, at 589.83. CHRISTIAN ROCHE, HISTOIRE DE LA CASAMANCE: CONQUÊTE ET RÉSISTANCE,

323 (Karthala 2d ed. 1985); see also Diouf, supra note 32, at 236. 84. MACARTAN HUMPHREYS & HABAYE AG MOHAMED, SENEGAL AND MALI,

UNDERSTANDING CIVIL WAR: EVIDENCE AND ANALYSIS 247, 252 (Paul Collier & Nicholas Sambanis eds. 2005), available at http://www.columbia.edu/~mh2245/papers1/hm2005.pdf (last visited Sept. 10 2015).

85. Evans, supra note 41, at 653, 656; see also Arthur John Armstrong, Mercenaries and Freedom Fighters : The Legal Regime of the Combatant Under Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts



In those years, a growing number of Casamancais voluntarily joined the MFDC for different reasons, mostly because of the Senegalese army’s persecution of family members and the attacks on home villages, and the faith in defending “[t]he colors of my nation [Casamance].”86

To find a way to settle the crisis, the African Commission on Human and Peoples’ Rights (ACHPR), in a mission undertaken in Senegal from June 1 to 6, 1996, adopted a “diplomatic solution” arguing that:

[I]t appears that neither the position of the separatists, nor that of the state authorities, can be taken in its entirety. For this reason, a frank and constructive dialogue must be instituted between the two parties, from which a solution can emerge, a solution, which will assure the cohesion and continuity of the people of the unified Senegalese state in a community of interest and destiny.87 This conclusion was reached because the mission

found that the reasons for supporting the separatist positions were deemed irrelevant.88 On the other side, reasons advanced by the central government were also not deemed pertinent. This was because, for the members of the mission, it was patent that Senegal had just become more flexible on the concept of “regionalisation” of the country. When the conflict in Casamance broke out, the central government seemed to have “[a] mechanical and static conception of national unity,” instead.89 (Protocol I), 30 JAG J. 125, 158 (1978) (“[T]he African experience has been that private mercenaries consistently ‘intervene’ in the internal affairs of Africa on the side of the secessionists. This pattern which has been evidenced in Algeria, the Congo, Nigeria, Guinea, and Southern Sudan works to destroy the independence and territorial integrity of certain African countries.”).

86. Evans, supra note 47, at 7. 87. Afr. Comm’n on Human and Peoples’ Rights ACHPR, Tenth Annual

Activity Report of the African Commission on Human and Peoples’ Rights 1996/97, 35, ¶ 12, ACHPR/RPT/10th, available at http://www.achpr.org/files/activity-reports/10/achpr20and21_actrep10_19961997_eng.pdf (last visited Sept. 10, 2015).

88. Id. at 35 ¶ 8. 89. Id. at 35 ¶¶ 9, 10, 11 (“10. Furthermore, the principle of territorial

integrity and inviolability of borders seen to perpetuate the arbitrary and artificial divisions affected by the former colonial powers, without consulting the concerned populations. 11 As for the principle of equality of



Therefore, to date,90 despite different attempts carried out by other regional and international actors, like the US91 appointing a new special advisor for the region in February 2014, and despite the fact that Senegalese President Sall, who visited Casamance from the17th to the 19th of March 2014, repeating vague offers of peace and announcing a €35 million development plan92 the conflict in Casamance persists. The date of its end is not easily foreseeable now,93 because issues such as corruption and money seem to constitute blocks for a definitive settlement of the conflict, and the Casamancais’ citizens and communities, it is clear that this means not a mathematical equality, but above all an equality of participation in the administration of public affairs.”).

90. Feb. 25, 2015. 91. See, e.g., U.S. Casamance Advisor Concludes Gambia Visit, THE POINT

(Sep. 18, 2013), available at http://thepoint.gm/africa/gambia/article/us-casamance-advisor-concludes-gambia-visit (last visited Sept. 12, 2015).

92. Appointed Special Advisor to the United States for the Casamance: Mark Boulware the Test of Longer West African Conflict, ALLODAKAR.COM (Feb. 4, 2014), available at http://www.africareview.com/News/US-names-special-envoy-to-Casamance/-/979180/2201706/-/mbay5hz/-/index.html (last visited Oct. 18, 2015) (“The new adviser will ‘work closely with all elements of the U.S. diplomatic mission in Senegal, including with the United States Agency for International Development (USAID), presiding at the moment Development Group in Casamance.”). Sénégal: le MFDC veut négocier l’avenir de la Casamance aux Etats-Unis, RFI.FR (March 28, 2014), available at http://www.rfi.fr/afrique/20140328-casamance-senegal-macky-sall-mfdc-paix-braves-rebellion/ (last visited, Sept. 12, 2015). For more recent developments, see also; Paix en Casamance : Salif Sadio impose un cessez-le-feu à ses combattants, Dakaractu (April 29, 2014), available at http://www.dakaractu.com/Paix-en-Casamance-Salif-Sadio-impose-un-cessez-le-feu-a-ses-combattants_a65141.html (last visited Sept. 12, 2015) : « Le chef de la branche armée du Mouvement des Forces Démocratiques de Casamance (Mfdc), Salif Sadio, vient de décider d’un cessez-le-feu unilatéral pour donner, dit-il, une chance aux négociations de paix en cours dans la région méridionale du Sénégal. ''Sud Quotidien'' rapporte qu'il en a fait l’annonce dans une interview accordée à notre confrère Ibrahima Gassama, directeur de la radio ZIK FM (basée à Ziguinchor) et diffusée hier, lundi 28 avril, sur les antennes de cette radio au cours de l’émission «Carrefour de la paix». Salif Sadio explique sa décision de cessez-le-feu unilatéral, c’est-à-dire «imposé à ses combattants», par l’engagement du gouvernement à parvenir à une paix durable et au démarrage des négociations à Sant’Egidio. »

93. See Senegal: No End in Sight to Casamance Conflict, Integrated Regional Info. Networks, (Feb. 17, 2012), available at http://www.refworld.org/docid/4f438f6d2.html (last visited Sept. 12 2015); see also Analysis: Closer to War than to Peace in Casamance? Integrated Regional Info. Networks? (Sep. 18, 2009), available at http://www.refworld.org/docid/4ab89227c.html (last visited Sept. 12, 2015).



continuing feeling of being discriminated against by the central government.94 This last affirmation seems to contradict what the Senegalese government officially reported in 2013, when it reminded that:

« La Constitution sénégalaise, adoptée en 2001 par référendum, consacre dans son article 1er « l’égalité devant la loi de tous les citoyens, sans distinction d’origine, de race, de sexe, de religion » et le titre II de la Constitution (« Des libertés publiques et de la personne humaine, des droits économiques et sociaux et des droits collectifs ») prend en charge cette préoccupation ».95 However, the election of a new president in Senegal in

2012, Macky Sall, should have brought fresh hope of a resolution of the conflict given, that he even announced a decentralization policy for Casamance.96

SELF-DETERMINATION AND A RIGHT TO RESIST FOR CASAMANCE?

Having described the main characters of the MFDC, the main aspects of the crisis in Casamance, and the opposite views held by the MFDC and the central government, this Article analyzes whether Article 1F(b) of the 1951 Geneva Convention Relating to the Status of Refugees and Article 1.5(b) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa would apply to the members of the MFDC.

Both the aforementioned articles withhold refugee status from “[a]ny person with respect to whom there are

94. Fall, supra note 20, at 28. 95. Senegal 2013 Periodical Report ¶ 9. The English translation for this

section stands as follows: “The Senegalese Constitution, adopted in 2001 by referendum, establishes in its first Article “the equality of all citizens before the law, without discrimination based on origin, race, sex, religion” and title II of the Constitution (‘freedoms of the public and of the human person, economic and social rights and community rights’) puts this concern at the forefront.”

96. Macky Sall, La Casamance Servira de Test à la Politique de Territorialisation, Seneweb.com (Dec. 15, 2012), available at http://www.seneweb.com/news/Politique/macky-sall-laquo-la-casamance-servira-de-test-a-la-politique-de-territorialisation-raquo_n_83570.html (last visited Sept. 12, 2015); see also Gino J. Naldi, Secession: The African Experience, SHIELDING HUMANITY: ESSAYS IN INTERNATIONAL LAW IN HONOUR OF JUDGE ABDUL G. KOROMA 696 (Charles C. Jalloh & Olufemi Elias eds.), Brill/Nijhoff.



serious reasons for considering that: . . . (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.”97 The clause above poses several problems when asylum-seekers from the MFDC claim “well-founded fear of persecution,”98 though they have committed acts of violence in Senegal such as killing soldiers in the Senegalese army, which occurred in 2010,99 2011, and 2012. Under the Senegalese Penal Code, this act

97. Convention Relating to the Status of Refugees, Jul. 28, 1951, 189 U.N.T.S. 150, 156. See also OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sep. 10, 1969, 1001 U.N.T.S. 45, 48 (“The provisions of this Convention shall not apply to any person with respect to whom the country of asylum has serious reasons for considering that: . . . (b) he committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.”); see also U.N. HIGH COMM’R FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES, ¶ 153, U.N. Doc. HCR/IP/4/Eng/REV.1 (Jan. 1992) (“Only a crime committed or presumed to have been committed by an applicant ‘outside the country of refuge prior to his admission to that country as a refugee’ is a ground for exclusion. The country outside would normally be the country of origin, but it could also be another country, except the country of refuge where the applicant seeks recognition of his refugee status.”).

98. Convention Relating to the Status of Refugees, supra note 97, at 152 (“A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who: . . . (2) . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”); see also OAU Convention, supra note 97, at 47 (“1. For the purposes of this Convention, the term ‘refugee’ shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it. 2. 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.”).

99. See Ireland: Refugee Documentation Centre, Senegal: Information on heavy fighting in Casamance area of Senegal from December 2010 to



constitutes a serious crime.100 However, the MFDC maintain that their acts were “legitimate.”101

In Africa there are several constitutions102 (excluding the 2001 Constitution of Senegal), as well as Article 20.2 of the 1981 African Charter on Human and Peoples’ Rights (1981 African Charter)103 which confer a “right to resist” in order to defend the established constitutional order and/or the integrity of the country.104 Therefore, this would not constitute a “crime” according to both the 1951

present. Information on MFDC rebels and government soldiers fighting in Bignona which is close to Gambian border (Feb. 10, 2011), available at http://www.refworld.org/docid/4d5a73302.html (last visited Sept. 12, 2015).

100. See CODE PENAL (Sen.), Livre Troisième, Titre Premier, Chapitre I, §§ III, IV, available at http://www.droit-afrique.com/images/textes/Senegal/Senegal%20-%20Code%20penal.pdf (last visited Sept. 12, 2015).

101. Casamance “MFDC Rebels” Kill Senegal Soldiers, BBC NEWS AFRICA (Dec. 21, 2011, 9:32 AM), available at http://www.bbc.co.uk/news/world-africa-16283352 (last visited Sept. 12, 2015). For a list of “incidents”, see Senegal: No End in Sight to Casamance Conflict, IRIN AFRICA (Feb. 17, 2012), available at http://www.irinnews.org/printreport.aspx?reportid=94895 (last visited Sept. 12, 2015).

102. CONSTITUTION OF THE REPUBLIC OF THE GAMBIA, Jan. 16, 1997, §§ 6.2, 6.3, available at http://www.refworld.org/docid/4811c33f2.html (last visited March 1, 2015). (“6. Defense of the Constitution . . . . (2) All citizens of The Gambia have the right and the duty at all times to defend this Constitution and, in particular, to resist, to the extent reasonably justifiable in the circumstances, any person or group of persons seeking or attempting by any violent or unlawful means to suspend, overthrow or abrogate this Constitution or any part of it. (3) A person who resists the suspension, overthrow or abrogation of this Constitution as provided in subsection (2), commits no offense.”); see also CONSTITUTION OF THE REPUBLIC OF UGANDA 1995, Sep. 22, 1995, available at http://www.refworld.org/docid/3ae6b5ba0.html (last visited Sept. 12, 2015) (“Chapter One, 3. Defense of the Constitution. . . . (4) All citizens of Uganda shall have the right and duty at all times (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to overthrow the established constitutional order; . . . . (5) Any person or group of persons who, as required by clause (4) of this article, resists the suspension, overthrow, abrogation or amendment of this Constitution commits no offence.”).

103. African Charter on Human and Peoples’ Rights, 1520 U.N.T.S 217, 249 (“2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.”); see also Shannonbrooke Murphy, Unique in International Human Rights Law: Article 20(2) and the Right to Resist in the African Charter on Human and Peoples’ Rights, 11 AFR. HUM. RTS. L.J. 465, 468, 483 (2011) (“There is no agreement among contemporary legal scholars that it [the right to resist] even exists, and no



Geneva Convention and the 1969 OAU Convention.105

Nevertheless, Senegalese authorities maintain that MFDC members are threatening the territorial integrity of Senegal, which runs contrary to what the International Court of Justice has ruled in 1986.106

The case in which the MFDC members could be affirmed to be victims of human rights abuses perpetrated by the central government is different. Yet the 1948

consensus on its definition even among its advocates. Elements of a definition advanced by Honoré provide the following useful fundamentals: that given certain conditions, there is an exceptional individual and collective human right to commit otherwise unlawful acts as a means to resist unlawful use or other abuse of power. The right to resist is therefore a secondary right that engages only as a consequence of primary right violations, and it is a ‘self-help’ form of remedy or method of enforcement of guarantees. . . . ‘oppression’ is a broad rather than narrow concept, related to misrule and misuse of authority and likely involving violations of one or more of the other substantive rights in the African Charter.”); Konstantinos D. Magliveras & Gino J. Naldi, The African Union: Institutions and Activities, ( Kluwer Law 2013) (“262. Paragraphs 2 and 3 of Article 20 confer on colonized and oppressed peoples the right to free them by resorting to any means recognized by the international community, and the right to the assistance of African States in their liberation struggle against foreign domination. Developing States have traditionally argued that the use of force in furtherance of wars of national liberation is valid on the grounds that these conflicts are being waged in support of a norm of international law, the principle of self-determination, and because the forcible deprivation of a people’s right to self-determination constitutes a breach of international law. Material aid, including that of a military nature, is therefore justified. The generally adopted stance of Western States has been that aid to nature liberation movements is limited to humanitarian assistance and political and moral support. These rights have less contemporary relevance with the virtual elimination of colonialism from Africa.”); Dinah Shelton, Self-determination in Regional Human Rights Law: From Kosovo to Cameroon, 105 AM. J. INT’L L. 60, 64 (“The article appears to recognize two distinct groups of peoples: those that are living under colonialism and oppression and those that are not. The first group is entitled to independence and foreign assistance in the struggle for liberation (external self-determination). Other peoples are entitled to maintain their existence and exercise their self-determination, but within existing states.”).

104. U.N. Human Rights Council, Progress Report of the Human Rights Council Advisory Committee on the Right of Peoples to Peace 10, Apr. 1 2011, U.N. Doc. A/HRC/17/39 (2011) (“Proposed Standards. 1. All peoples and individuals have the right to resist and oppose oppressive colonial or alien domination that constitutes a flagrant violation of their human rights, including the right of peoples to self-determination, in accordance with international law. 2 All individuals have the right to oppose war crimes, genocide, aggression, apartheid and crimes against humanity, violations of



Universal Declaration of Human Rights (1948 UDHR),107 in Paragraph 3 of its preamble, makes the only reference to the situation of individuals who could resist a supposed totalitarian regime in international law:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . . . THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS.108

other universally recognized human rights, any propaganda in favor of war or incitement to violence and violations of the human right to peace, as defined in the present declaration.”); see also Senegal 2003 Periodic Report 30 (“Le Chef de l’État sénégalais le Président Abdoulaye Wade avait déclaré lors de l’ouverture du Congrès de la Fédération Internationale des Ligues de Droits de l’Homme [à Dakar, en 1997] : « Le devoir de l’État est d’abord de garantir la protection des populations civiles et l’intégrité territoriale. Le premier des droits de l’homme est le droit à la vie. Les forces de l’ordre remplissent en Casamance, dans des conditions difficiles une mission de sécurisation dont l’objectif est bien sûr la protection des droits de l’homme ».”) [The head of the Government of Senegal President Abdoulaye Wade said at the opening of the Congress of the International Federation of leagues of rights of human: The duty of the State is firstly to ensure the protection of the civilian population and territorial integrity. The first of the human rights is the right to life. The forces of order fill in Casamance, in difficult conditions a security mission whose objective is of course the protection of human rights.].

105. Walter Kӓlin & Jӧrg Künzli, Article 1F b): Freedom-Fighters, Terrorists and the Notion of Serious Non-Political Crimes, 12 INT’L J. REF. L. 46, 50 (2000).

106. Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, ¶ 25 (“[T]he maintenance of the territorial status quo in Africa is often seen as the wisest course to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.”).

107. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217 (Dec. 10, 1948), available at http://www.refworld.org/docid/3ae6b3712c.html (last visited Sept. 12, 2015).

108. Murphy, supra note 103, at 470–471 (“While some commentators maintain that [paragraph 3 of the preamble of the 1948 UDHR] acknowledges a customary right to resist oppression, its preambular placement and indirect formulation are ostensibly those of a non-right, not a right, and indeed the express right proposals debated in the drafting process were ultimately withdrawn without a vote. So the position of the



Walter Kӓlin and Jӧrg Künzli commented on this provision, proposing that in line with the model drafted by the 1948 UDHR, it seems that the most obvious circumstances in which opposition against a sovereign government would be allowed is when victims of human rights abuses do not have the opportunity to defend themselves lawfully, with the status of this right persisting to be uncertain because it has not been adopted in any other human rights instrument.109

In addition, the UN General Assembly (UNGA) Resolution 2625 protects the principle that a population, when deprived of its right to self-determination (a right guaranteed also by the 1966 International Covenant on Civil and Political Rights (ICCPR)),110 “has a right to international assistance in its resistance and thus contains an implied right to resist.”111 However, while scholars consider that this latter right to be assisted applies in right to resist in the Universal Declaration is ambiguous at best.”); see also Murphy, supra note 103, at 490–91 (“The right [to resist] could also apply to minority peoples facing situations of systematic discrimination and exclusion warranting secession or lesser forms of self-governance, provided that the conditions complained of are convincingly established, bearing in mind the African Commission’s understandable reluctance to make positive determinations in any cases based on thin evidence and its preference for internal self-determination solutions.”).

109. Kӓlin & Künzli, supra note 105, at 51–52. 110. International Covenant on Civil and Political Rights, Dec. 16,

1966, 999 U.N.T.S. 171, 173. (“Article 1.1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”).

111. See G.A. Res. 2625 (XXV), U.N. Doc. A/RES/2625 (XXV) (Oct. 24, 1970), available at http://www.un-documents.net/a25r2625.htm (last visited Sept. 12, 2015) (“The principle of equal rights and self-determination of peoples . . . . Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter . . . . Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.”).



situations of so-called “external self-determination,”112 it is not clear whether this right applies to peoples resisting oppressive or unresponsive domestic regimes, such as in situations of “internal self-determination”113 like in Casamance.114 Granted, the existence of the right of the Casamancais people to have an “external self-determination” could also be raised. However, according to Carlo Panara, “this right would exist only if the Senegalese government persecuted Casamancais people or Diola people, and endangered their existence or denied them full access to government.”115 Although the MFDC

112. Murphy, supra note 103, at 471. For a more detailed definition of both “internal” and “external” self-determination, see Milena Sterio, On the Right to External Self-Determination: “Selfistans,” Secession, and the Great Powers’ Rule, 19 MINN. J. INT’L L. 137, 138–39 (2010) (“[C]ourts and scholars came up with two different forms of self-determination: internal and external. The former potentially applies to all peoples, and signifies that all peoples should have a set of respected rights within their central state. Minority groups should have cultural, social, political, linguistic, and religious rights and those rights should be respected by the mother state. As long as those rights are respected by the mother state, the ‘people’ is not oppressed and does not need to challenge the territorial integrity of its mother state. The latter form of self-determination applies to oppressed peoples, whose basic rights are not being respected by the mother state and who are often subject to heinous human rights abuses. Such oppressed peoples, in theory, have a right to external self-determination, which includes a right to remedial secession and independence. In theory, the distinction between internal versus external self-determination is easy to draw, and a scholar or a judge should have no difficulty deciding which minority groups should accrue the more drastic right to external self-determination. Simply look to the human rights record of the mother state, and if the record shows violations, then the minority group should be allowed to separate. In reality, the distinction is very difficult to draw. Numerous minority groups around the globe have been mistreated and have asserted their rights to external self-determination, only to find themselves rebuffed by the world community. On the other hand, some minority groups have found strong support in the eyes of external actors and have garnered sufficient international recognition to be allowed to separate.”) (citations omitted).

113. See Lawrence S. Woocher, The ‘Casamance Question’: An Examination of the Legitimacy of Self-Determination in Southern Senegal, 7 INT’L J. ON MINORITY & GROUP RTS. 341, 367 (2000) (defining “internal self-determination” as “a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state”) (citation omitted).

114. See Fatasah Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Aftrica, 230–36 (2003).

115. Panara, supra note 27, at ¶ 30.



think differently on the same issue116 (which is supported in their claims and in reports by renowned NGOs),117 it seems that it has never happened in independent Senegal.118

Antonio Cassese argued that the UNGA Resolution 2625 implies that secession may be legitimate when it is apparent that internal self-determination is completely unattainable and a population experiences severe and continual persecution.119 Moreover, regarding internal self-

116. Supra Part 3.117. Amnesty Int’l, Senegal: An Agenda for Human Rights: An

Opportunity Not to Be Missed by the Authorities Elected in the March 2012 Presidential Election 6, 20, AI Index AFR 49/004/2012 (Jun. 20, 2012), available at http://www.refworld.org/docid/4fe418722.html (last visited Sept. 12, 2015) (“The new authorities must address the need for truth and justice for victims whose human rights are attacked or violated, whether it be those subject to police violence or those civilians caught up in the Casamance conflict. This conflict, which has lasted thirty years, has destroyed entire families. They can only hope to put their lives back together if the Senegalese state has the courage to recognize the extent of human rights abuses committed by both parties and to ensure justice, truth and compensation for the victims and their families . . . . This . . . tension was accompanied by serious human rights violations. On 21 November 2011, suspected MFDC elements killed 10 youths who had gone to find teak wood in the Bissine forest (around 30 km from Ziguinchor, the main town in Casamance). The MFDC combatants have forbidden, for some years now, people using resources from this forest, which they consider to be their own private reserve. In May 2008, 16 villagers gathering cashew nuts in Tampe, 15 km east of Ziguinchor, were attacked by individuals claiming to be MFDC members who, after having bound their hands, cut off their left ears. In response to these attacks led by the MFDC, the Senegalese soldiers have, for their part, arrested civilians suspected of supplying information to the MFDC. As a result, on 2 January 2012 eight people were arrested in the village of Affiniam (around 30 km north of Ziguinchor). Amongst those arrested there were teachers, one schoolboy, one student, a fisherman, and a shepherd arrested by security forces as his flock grazed in the bushes. These persons were charged with undermining state security and were detained in the Ziguinchor prison. Amnesty International fears that these arrests may have been carried out as part of reprisals launched a few hours after a Senegalese gendarme along with three others were injured in this same village.”).

118. Panara, supra note 27, at ¶ 30.119. ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL

120 (1995); see also HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION: THE ACCOMMODATION OF CONFLICTING RIGHTS 473-474 (1990) (“[The] right to autonomy [considered by the author as a ‘new principle of international law’] recognizes the right of minority and indigenous communities to exercise meaningful internal self-determination and control over their own affairs in a manner that is not inconsistent with the ultimate sovereignty - as that term is properly understood - of the state. . . . The



determination, all states and organizations are asked to abstain from action of any kind that influences the domestic decisions of other countries.120 However, this assessment is contrary to the practice of most States, that have until now, been deprived of a right to secede such groups.121 Yet the intention of the drafters of the 1981 African Charter confirm that this document as a whole was intended also to deal with the creation of post-colonial African regimes that violated human rights.122 Hence, Shannonbrooke Murphy thinks that a right-to-resist should exist and that it should be well regulated in order to realize a “right to peace”123 in the medium-to-long term.124 A “right to peace”, in Africa, was first proclaimed in 1979, by Léopold Senghor, former President of the Republic of Senegal.125

HUMANITARIAN LAW APPLIED TO INTERNAL ARMED CONFLICTS

This Part analyzes how the fundamental norms of international humanitarian law will apply to the conflict right to autonomy may be asserted more aggressively in situations where regional, ethnic, or economic disparities are shown to exist; where there is discrimination against minority groups as such; or where the marginalization of certain groups prevents their effective participation in society (where such participation is desired by them).”).

120. Rupert Emerson, Self-Determination, 65 AM. J. INT’L L. 459, 466 (1971) (“Any effort on the part of states or organizations to become involved in the affairs of other sovereignties in order to promote one or another decision would seem to be an evident violation of the ban on intervention.”).

121. Kӓlin & Künzli, supra note 105, at 58. 122. Edem Kodjo, The African Charter on Human and Peoples’ Rights, 11

HUM. RTS. L.J. 271, 271–74, 281–82 (1990).123. In this regard, see e.g., The Declaration on the Right of Peoples to

Peace, G.A. Res. 39/11, Annex, (Nov. 12, 1984). At its paragraph 1, the UNGA “Solemnly proclaims that the peoples of our planet have a sacred right to peace.”

124. Murphy, supra note 103, at 477. 125. Léopold Sédar Senghor, President of the Republic of Senegal,

Speech (1979), in HUMAN RIGHTS, PEACE AND JUSTICE IN AFRICA: A READER 49, 52 (Christof Heyns & Karen Stefiszyn, eds., 2006) (“We wanted to lay emphasis on the right to development and the other rights which need the solidarity of our states to be fully met: the right to peace and security, the right to a healthy environment, the right to participate in the equitable share of the common heritage of mankind, the right to enjoy a fair international economic order and, finally, the right to natural wealth and resources.”) (emphasis added).



subject of our study. This Part will also highlight the essential observation that, in these recent years, wars occurring in Africa are more similar to civil wars than international conflicts. In every war of any nature, however, the highest price is often paid by the innocent civilians, and the conflict in Casamance is not an exception to this sad rule.

International humanitarian law, when applied to internal armed conflicts in which no military units of a second state are actively involved in the conflict, does not recognize insurgents126 as combatants. According to Walter Kӓlin and Jӧrg Künzli, if the insurrectionaries are made prisoners by the central government, they will not benefit from the status of prisoner-of-war although they are part of a group whose definition falls into the requirements of ‘armed forces’ contained in Article 43 of 1977 Protocol I.127 These insurgents could be punishable for having participated in the conflict if the committed crimes under the local criminal law and in spite of the fact that they are covered by the guarantees provided in Articles 4 to 6 of the 1977 Protocol II.128

126. See HIGGINS, supra note 4, at 6 (“Unfortunately, as with rebellion, traditional international law offers no exact definition of insurgency, and this leaves much confusion surrounding this issue. There are two schools of thought regarding the status of insurgents in international law. Some scholars such as Higgins and Greenspan are of the opinion that the conferring of the status of ’insurgents’ on a group brings them out of the remit of municipal law and firmly onto the international law forum, whereas others such as Castren are of the opinion that the status of insurgency does not confer any rights or duties on the group and that they are still subject to municipal criminal law.”) (citations omitted).

127. Kӓlin & Künzli, supra note 105, at 61. See 1977 Geneva Protocol I art. 43, 1125 U.N.T.S. 23 (“Article 43. ARMED FORCES. 1) The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system, which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. 2) Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3) Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.”).

128. Kӓlin & Künzli, supra note 105, at 61, fn. 71 (referring to Articles 4–6 “These articles actually constitute a mini-convention of human rights



As demonstrated earlier,129 in Casamance, MFDC members have killed numerous soldiers of the Senegalese army, an act punishable by the Senegalese Criminal Code. Nevertheless, Article 6.5 of the 1977 Protocol II explains that at the end of the internal conflict, the authorities in power should make an effort to grant amnesty to individuals who participated in hostilities or those who were dispossessed of their freedom for reasons associated with hostilities.130 As previously mentioned,131 the Senegalese authorities did grant amnesty to MFDC members.

Common Article 3 of the four 1949 Geneva Conventions is also noteworthy. It guarantees the indispensable standards of humanity in non-international armed conflicts, forbidding, among other things, the murder, torture and cruel treatment of all “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat . . . .”132 In this regard, it seems

which have to be respected in such situations of violence and which partly go beyond the inviolable guarantees that are provided for in the human rights treaties and are also applicable in such situations. In particular, insurgents are to be treated humanely and guaranteed adequate care and a means of subsistence.”). See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Jun. 8, 1977, 1125 U.N.T.S. 609 [hereinafter 1977 Geneva Protocol II].

129. Supra Part 4. 130. 1977 Geneva Protocol II, art. 6.5, 1125 U.N.T.S. 614 (“5. At the end

of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”).

131. Supra Part 3.132. Geneva Convention Relative to the Treatment of Prisoners of War of

August 12, 1949 art. 3.1, 6 U.S.T. 3316, 3318, 75 U.N.T.S. 135, 136. See also MELANIE JACQUES, ARMED CONFLICT AND DISPLACEMENT: THE PROTECTION OF REFUGEES AND DISPLACED PERSONS UNDER INTERNATIONAL HUMANITARIAN LAW 164–65 (2012) (“Article 3 of the Geneva Conventions . . . addresses the issue of refugees in non-international armed conflicts. Yet, there are countless instances of refugees caught up in civil wars. . . . Provided they are not directly participating in hostilities, refugees in non-international armed conflicts are protected as civilians and, as such, benefit from the fundamental guarantees of humane treatment, as set out in common article 3 of the Geneva Conventions . . . .”) (citations omitted); HIGGINS, supra note 4, at 27 (“States have shown much reluctance in the application of Common Article 3 in any non-international conflict of any kind, not only



the MFDC generally treated Senegalese captives humanely. For example, they allowed regular visits by International Committee of the Red Cross (ICRC) personnel.133

The provision contained in Common Article 3 proposes a comprehensive definition of armed conflict by using the descriptive word “hostilities.” More remarkably, through its application of primary humanitarian protections to non-international conflicts, the 1949 Geneva Conventions seem to constitute the primary international legal authority for the idea that armed conflicts are not limited to armed fights between states, but rather that they may include “[c]onflicts occurring in the territory of one of the High Contracting Parties.”134 with regard to wars of national liberation. As with a state of insurgency or belligerency, Governments are not willing to admit that they have an armed conflict of any nature occurring within their territory, preferring to deal with it under their own municipal law, perhaps moderating the severity of the municipal law if the conflict is sustained over a period of time.”).

133. See, e.g., Int’l Comm. of Red Cross, Senegal: ICRC Visits Eight People Held by MFDC in Casamance, Jan. 17, 2012, available at http://www.refworld.org/docid/4f17db1e2.html (last visited Jan. 26, 2015); see also Int’l Comm. of Red Cross, Annual Report 2012 - Dakar (Regional) 196 (2013), available at https://www.icrc.org/eng/assets/files/annual-report/icrc-annual-report-2012.pdf (last visited Jan. 26, 2015) (“[ICRC] Delegates visited detainees arrested in relation to the Casamance conflict . . . sharing feedback and recommendations confidentially with the authorities. After the release of the Senegalese nationals held by the MFDC, the ICRC, acting as a neutral intermediary, facilitated their safe transfer home.”). But see HIGGINS, supra note 4, at 25 (“[During the secession of Biafra] the government never formally recognised the application of the Geneva Conventions, not even Common Article 3. The Nigerian Federal government had issued a code of conduct to its troops that required them to treat Biafran prisoners as prisoners-of-war. Orders were also given to protect civilians, religious buildings etc. The Red Cross also regularly visited federal government-held prisoners.”) (citations omitted).

134. Geneva Convention Relative to the Treatment of Prisoners of War art. 33, August 12, 19493, 6 U.S.T. 3316, 3318, 75 U.N.T.S. 135, 136 (“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and



Given that most conflicts in this era in Sub-Saharan Africa are civil or non-international conflicts, in which the vast majority of the victims are civilians, Article 3 seems to have become increasingly important in the 21st century.135 That was the case in the forgotten conflict136 of Casamance,137 where it at least appears that the demining process is accelerating. 138

As Walter Kӓlin and Jӧrg Künzli maintained, the participation in a conflict of civil character is not illegal per se except if a person commits crimes against in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”).

135. See Penelope Mathew, First Do No Harm: Refugee Law as a Response to Armed Conflict, in PROTECTING CIVILIANS DURING VIOLENT CONFLICT (David W. Lovell & I. Primoratz eds. 2012) 159, 162 (“The changing nature of the war, however – in particular the fact that we tend not to be concerned with classic interstate conflicts undertaken for ‘reasons of state’ but civil conflicts that involve political, religious and/or ethnic cleavages-has led to cases in which it is fairly easy to identify violations that are linked to one of the five grounds [of the 1951 Geneva Convention], as opposed to generalized or indiscriminate harm.”).

136. See SENEGAL: West Africa’s Forgotten Conflict Lingers on //Focus//, IRIN AFRICA (Mar. 6, 2003), available at http://www.irinnews.org/report/41947/senegal-west-africa-s-forgotten-conflict-lingers-on-focus (last visited Feb. 15, 2015).

137. See Amnesty Int’l, Casamance Civilians Shelled by the Mouvement des Forces Démocratiques de Casamance (MFDC), Democratic Forces of Casamance Movement, AI Index AFR 49/05/99 (Jun. 30, 1999), available at http://www.refworld.org/docid/3ae6a9c74.html (last visited Jan. 22, 2015) (“Amnesty International urges those responsible both politically and militarily to repudiate publicly all deliberate or indiscriminate attacks against the civilian population or targets, including the deployment of shells against civilian targets. The armed opposition movement must maintain a strict chain of command and take sanctions against those who disobey its orders and launch hostilities against civilians.”).

138. See Integrated Regional Info. Networks, Demining Speeds up in Senegal’s Casamance Region (Apr. 24, 2013), available at http://www.refworld.org/docid/517e58124.html (last visited Mar. 1, 2015).



humanity or war crimes.139 In addition, individuals having participated in a civil conflict through military activities are punishable although they should be treated better than common criminals and, as is confirmed by State practice in Africa, they should also be able to take advantage of an amnesty at the end of the hostilities.140 As described above,141 in Casamance, members of MFDC have already benefited from amnesty on a regular basis. The conflict cannot be considered resolved, however,

139. Kӓlin & Künzli, supra note 105, at 63. In addition, Article 1.5 (a) of the 1969 OAU Convention excludes from the status of refugees persons who have committed “a crime against peace, a war crime, or a crime against humanity” from asylum. The interdiction of such acts, qualified as “crimes” does not have any spatial or temporal limitations. Article 1.5 (a) stipulates: “The provisions of this Convention shall not apply to any person with respect to whom the country of asylum has serious reasons for considering that: a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.” See also Rome Statute of the International Criminal Court art. 8.2, U.N. Doc. A/CONF.183/9 (2002) (“2. For the purpose of this Statute, ‘war crimes’ means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Willful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Willfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages.”); id. art. 7.1 (“1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”).

140. Kӓlin & Künzli, supra note 105, at 63.



because tensions were renewed in November 2011 when civilians were detained, injured, and put to death in retaliation by the Senegalese army and the MFDC.142

SERIOUS NON-POLITICAL CRIMES AND TERRORISM

This Part will flesh out the relation between “serious non-political crimes” and terrorism, and analyze how their varied, sometimes ambiguous definitions could be and are effectively applied to the members of the MFDC. On one hand, according to Nicholas Blake, if the well-founded fear of persecution is based on the political actions of the claimant or not, the suspicion that the applicant has committed a serious political crime does not constitute in itself a valid motive to deprive him of the protection guaranteed by the 1951 Geneva Convention.143

On the other hand, have members of the MFDC really committed “acts of terrorism” according to this definition: “criminal acts directed against a State [Senegal] and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public?”144

As mentioned previously,145 the most important test to determine if the MFDC members deserve refugee status is whether they have committed a “serious non-political crime outside the country of refuge prior to his/her admission to that country as a refugee,” mentioned in

141. Supra Part 3–4. 142. Amnesty Int’l, supra note 26, at 4–5.143. Nicholas Blake, Exclusion from Refugee Protection: Serious Non

Political Crimes After 9/11, 4 EUR. J. MIGRATION & L. 425, 430 (2002). At ibid., 431, the author explained: “The structure of the (1951 Geneva) Convention is that persons within the definition section, Article 1, as a whole can claim the benefits of Article 2 to 34. This suggests that whether there is a well-founded fear, and whether despite it there is reason to believe that a person is not deserving of international protection by reasons of acts done before the claim to protection, are determined at the outset of the process of status determination.”

144. Convention for the Prevention and Punishment of Terrorism, 19 League of Nations O. J. 23, 23 (1938), League of Nations Doc. C.546(I).M383(I).1937.V(1938) (November 16, 1937).

145. Supra Part 4.



Article 1F(b) of the 1951 Geneva Convention and Article 1.5(b) of the 1969 OAU Convention. The clause on “serious non-political crimes” is also mentioned in the laws of both The Gambia and Guinea-Bissau, the two sovereign states bordering Casamance (which are thus the most natural “way out” for MFDC asylum-seekers in Africa).146

Several elements that influence the interpretation of this expression should be emphasized. First, this norm is particularly difficult to characterize because the term “crime” can have different meanings depending on the jurisdiction.147 Stefan Daya Amarasinha and Martin Isenbecker listed a series of crimes, which, in their opinion, should belong to the aforementioned category of “serious non-political” crimes: “[M]urder, rape, hijacking, mutilation, arson, drug trafficking . . . whereas crimes of a less serious character such as shoplifting and traffic offences are not covered.”148 They added that it is of no

146. Refugee Act, 2008 art. 23.2 (a) (Gam.), available at http://www.refworld.org/docid/4a71a8202.html (last visited Oct. 18, 2015). “(2) A person is not eligible for the grant of refugee status under this Act , if there are serious reasons for considering that the person: (a) committed a serious non-political crime outside The Gambia prior to his or her entry into The Gambia.”); see also Lei No. 6/2008 de 2008, Aprovado o Estatuto do Refugiado art. 3.3 (Guinea-Bissau), available at http://www.refworld.org/docid/49fff8e72.html (last visited March 2, 2015). (text in Portuguese) Artigo 3 Exclusao do Estatuto de Refugiado: E’ excluido do beneficio do Estatuto de Refugiado na Guine’-Bissau, qua/quer pessoa de quem se tem serias razoes de pensar que: [...] 3) Cometeu um crime grave de delito comum fora da Republica da Guine’-Bissau antes de ser amitido como refugiado.

147. U.N. HIGH COMM’R FOR REFUGEES, supra note 97, at ¶ 155 (“What constitutes a ‘serious’ non-political crime for the purposes of this exclusion clause is difficult to define, especially since the term ‘crime’ has different connotations in different legal systems. In some countries, the word “crime” denotes only offences of a serious character. In other countries it may comprise anything from petty larceny to murder. In the present context, however, a ‘serious’ crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1 F (b) even if technically referred to as ‘crimes’ in the penal law of the country concerned.”).

148. Stefan Daya Amarasinha & Martin Isenbecker, Terrorism and the Right to Asylum Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees – A Contradiction in Terms or Do Opposites Attract?, 65 NORDIC J. INT’L L. 223, 227 (1996). About hijacking as a serious crime, see U.N. HIGH COMM’R FOR REFUGEES, GUIDELINES ON INTERNATIONAL PROTECTION NO. 5: APPLICATION OF THE EXCLUSION CLAUSES: ARTICLE 1F OF THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES, ¶ 27, U.N.



importance that the acts committed are considered crimes in the country of refuge; rather, it is the nature of the act committed that matters the most.149 Therefore, MFDC members accused of homicide,150 kidnapping,151 and rape have, indisputably, committed “crimes.”152

In this regard, the UNHCR provides a contrario definition of “non-political” that contemplates three tests for determining whether an offence is political.153 First, UNHCR provides a precise interpretation of the term

Doc. HCR/GIP/03/05 (Sep. 4, 2003), available at http://www.refworld.org/docid/3f5857684.html (last visited Mar. 2, 2015) (“As acts of hijacking will almost certainly qualify as a “serious crime” under Article 1F(b), only the most compelling of circumstances can justify non-exclusion. Acts of torture are prohibited under international law. Depending on the context, they will generally lead to exclusion under Article 1F.”).

149. See Amarasinha & Isenbecker, supra note 148, at 227; U.N. HIGH COMM’R FOR REFUGEES, supra note 97, ¶ 156 (“In applying this exclusion clause [on serious non-political crimes], it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.”) (emphasis added).

150. See R.A. Friedlander, Terrorism and National Liberation Movements: Can Rights Derive from Wrongs?, 13 CASE W. RES. J. INT’L L. 281, 282 (1981) (“[V]iolence is not automatically a form of public protest when directed against particular political systems and established governments. When victims comprise civilian populations, murder is murder, regardless of what slogans are piously shouted or what justifications are ingenuously conceived.”). See generally U.S. Dep’t St. 2009 Country Reports on Human Rights Practices – Senegal (2010), available at http://www.refworld.org/docid/4b9e52c18c.html (last visited Feb. 1, 2015) (commenting on homicides in Senegal).

151. See generally, Integrated Regional Info. Networks, Senegal: Rebels act on kidnap threats in Casamance (Mar. 20, 2008), available at http://www.refworld.org/docid/47ea1fce1c.html (last visited Oct. 18, 2015).

152. Amnesty Int’l, Senegal: Land of Impunity 11, AI Index AFR 49/001/2010 (Sep. 15, 2010), available at http://www.refworld.org/docid/4c930c912.html (last visited Oct. 18, 2015) (“Throughout the conflict, armed elements of the MFDC were responsible for the deliberate and arbitrary abduction and homicide of civilians suspected of collaborating with the Senegalese authorities. They also committed acts of torture and rape in order to force communities off land considered by the armed opposition movement to be its private property. For example, on 1 July 1999, six women from the Mankagne ethnic group,



“serious.”154 Second, regarding the procedural nature of the exclusion clause, it is essential that there are serious reasons to believe that the applicant has committed these “serious non-political crimes.” Whether a crime is “serious” must be determined by considering what the equivalent sentence would be if the applicant’s national court took the applicant to trial. Moreover, it is important to check if the crime continues to be justiciable in the country where it was committed. Thus, if the applicant has already been convicted and served his/her sentence or he/she has been pardoned or amnestied, the exclusion clause is more likely to apply.155 In practice, this means

who had gone to gather cashew nuts in an orchard in Saint-Louis Mankagne (around 10 km to the southeast of Ziguinchor, Casamance’s main town), were attacked by armed elements claiming to represent the MFDC and speaking Diola. During the attack, some women, including Anna Malack and Diminga Ndecky, were assaulted and raped.”) (emphasis omitted); see also Amnesty Int’l, Widespread Use of Torture Persists with Impunity, While Human Rights Abuses Also Continue in Casamance, AI Index AFR/49/01/96 (Feb. 28, 1996), available at http://www.refworld.org/docid/3ae6a99517.html (last visited March. 2, 2015) (“Amnesty International has also been informed of very serious abuses by the MFDC against unarmed civilians, both traditional leaders and people who have recently settled in Casamance from other regions of Senegal, who were suspected of collaborating with the Senegalese authorities. Villagers who have refused to pay a ransom to the rebels have been beaten, and some have been killed.”).

153. U.N. HIGH COMM’R FOR REFUGEES, supra note 97, at ¶ 152 (“In determining whether an offence is ‘non-political’ or is, on the contrary, a ‘political’ crime, regard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature.”) (emphasis added).

154. Id. at ¶ 155 (“In the present context, however, a ‘serious’ crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1 F (b) even if technically referred to as ‘crimes’ in the penal law of the country concerned.”).

155. Amarasinha & Isenbecker, supra note 148, at 227–28 (“Furthermore, the crime in question must have been committed ‘outside the country’ of refugee . . . . If the crime is committed within the territory of the country of refuge, this crime remains subject to the jurisdiction and due process of law before the competent national courts of that country according to the principles of public international law.”); see also J. C.



that MFDC members amnestied in 2004 were entitled to apply and to receive asylum even though “that amnesty prevented any criminal proceedings against the perpetrators of massive human rights violations and abuses, including extrajudicial executions, forced disappearances, torture, long term arbitrary detentions without trial and deliberate and arbitrary abductions and homicides, committed throughout the 1990s.”156

There are even more difficulties in applying this exclusion clause to an individual who has committed an act of terrorism because there is still no settled definition of “serious crimes”157 even though many international agreements, such as the 1979 International Convention HATHAWAY, THE LAW OF REFUGEE STATUS 221 (1991) (“Rather, it is simply a means of bringing refugee law into line with basic principles of extradition law, by ensuring that important fugitives from justice are not able to avoid the jurisdiction of a state in which they may lawfully face punishment.”); U.N. HIGH COMM’R FOR REFUGEES, supra note 97, at ¶ 157 (“In evaluating the nature of the crime presumed to have been committed, all the relevant factors – including any mitigating circumstances – must be taken into account. It is also necessary to have regard to any aggravating circumstances as, for example, the fact that the applicant may already have a criminal record. The fact that an applicant convicted of a serious non-political crime has already served his sentence or has been granted a pardon or has benefited from an amnesty is also relevant. In the latter case, there is a presumption that the exclusion clause is no longer applicable, unless it can be shown that, despite the pardon or amnesty, the applicant’s criminal character still predominates.”).

156. Amnesty Int’l, supra note 152, at 5. See id. at 9 (“In July 2004, the Senegalese president, Abdoulaye Wade, promulgates an amnesty law for all offences committed during the internal conflict in Casamance since 1991, ‘whether the perpetrators have been definitively judged or not.’”) (emphasis added).

157. See Joseph J. Lambert, The Problem of International Terrorism and the Response of International Organization, in REFUGEE LAW IN CONTEXT: THE EXCLUSION CLAUSE 177, 179 (Peter J. van Krieken ed., 1999) (“Although there seems to be general agreement that terrorism involves the threat or use of violence . . . differences in definition range from semantic to the conceptual . . . [d]espite all of the uncertainty and disagreement in this area, there are some definitions of terrorism which seem reasonable in so far they, to a certain extent, bridge the gap between some various viewpoints.”); see also U.N. HIGH COMM’R FOR REFUGEES, supra note 148, at ¶ 25 (“Despite the lack of an internationally agreed definition of terrorism, acts commonly considered to be terrorist in nature are likely to fall within the exclusion clauses even though Article 1F is not to be equated with a simple anti-terrorism provision. Consideration of the exclusion clauses is, however, often unnecessary as suspected terrorists may not be eligible for refugee status in the first place, their fear being of legitimate prosecution as opposed to persecution for Convention reasons.”) (emphasis omitted).



against the Taking of Hostages, specify particular offences.158

It appears that the text of the 1951 Geneva Convention implicitly refers to anterior jurisprudence and gives states a certain degree of appreciation in its application.159

In line with conventional criteria related to cases in which a felony is perpetrated, the applicant to asylum, to have his/her claim rejected, should have been personally implicated in either the planning or execution of an act of terrorism.160 In this sense, the simple membership to groups accused of terrorist acts, such as the MFDC, do not validate the application of the exclusion clause, this being also confirmed by the interpretation of the terms “has committed” in article 1F(b) of the 1951 Geneva Convention.161 However, it would be logical if article 1F(b)

158. International Convention Against the Taking of Hostages, opened for signature Dec. 18, 1979, 1316 U.N.T.S. 205; see Kӓlin & Künzli, supra note 105, at 75 (“On the basis of these treaties, the following elements can be set forth as constituting the commonality of terrorist acts: (1) A terrorist act exposes or threatens to expose persons to a danger to their life and physical integrity; (2) The act of violence is directed against an indeterminate group of people or has a specific aim but is directed against a category of persons in particular need of protection; and (3) The act is undertaken with a view to constrain a State or its representatives from taking specific actions.”). See generally Wil D. Verwey, The International Hostages Convention and National Liberation Movements, 75 AM. J. INT’L L. 69–92 (1981) (providing a discussion on state terrorism versus individual terrorism).

159. See Gilbert Guillaume, Terrorisme et Droit International, 215 RECUEIL DES COURS 362 (1989).

160. See Rene Bruin & Kees Wouters, Terrorism and the Non-Derogability of Non-Refoulment, 15 INT’L J. REF. L. 5, 14–15 (2003) (“[T]hat terrorism is a collective term for a number of serious offences for which persons should be prosecuted. By focusing on the act rather than the actor, an objective legal concept is created by which the difficult issue of terrorism versus freedom fighting can be resolved.”).

161. U.N. HIGH COMM’R FOR REFUGEES, supra note 97, at ¶ 175 (“Applications for refugee status are frequently made by persons who have used force or committed acts of violence. Such conduct is frequently associated with, or claimed to be associated with, political activities or political opinions. They may be the result of individual initiatives, or may have been committed within the framework of organized groups. The latter may either be clandestine groupings or political cum military organizations that are officially recognized or whose activities are widely acknowledged. Account should also be taken of the fact that the use of force is an aspect of the maintenance of law and order and may – by definition – be lawfully resorted to by the police and armed forces in the exercise of their



was applied in cases where leaders of an organization had explicitly practiced violence as a component of their actions, or when the same leaders had encouraged the repetition of violent means as a way of attaining a political goal, having, however, personally abstained from participating in the violent acts.162

Three key aspects become relevant in the analysis of an application when local authorities are confronted with an asylum claim which entails Article 1F(b).

First, it is essential to ascertain if the act under analysis may be described as a “serious non-political crime,” with the object and aim of the act playing a central role. Yet, the political nature of an activity is not considered if the activity under analysis is frightful or disproportionate with the required goal.163

If the applicant affirms that the criminal activity under analysis has, at its foundations, a political motive, this will functions.”) (footnote omitted).

162. Amarasinha & Isenbecker, supra note 148, at 229. 163. U.N. HIGH COMM’R FOR REFUGEES, supra note 97, at ¶ 152; see also

U.N. HIGH COMM’R FOR REFUGEES, supra note 148, at ¶¶ 15, 26 (“A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, nonpolitical motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as acts those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles.”) (“Of all the exclusion clauses, Article 1F(b) may be particularly relevant as acts of terrorist violence are likely to be disproportionate to any avowed political objective. Each case will require individual consideration. The fact that an individual is designated on a national or international list of terrorist suspects (or associated with a designated terrorist organization) should trigger consideration of the exclusion clauses but will not in itself generally constitute sufficient evidence to justify exclusion. Exclusion should not be based on membership of a particular organization alone, although a presumption of individual responsibility may arise where the organization is commonly known as notoriously violent and membership is voluntary. In such cases, it is necessary to examine the individual’s role and position in the organization, his or her own activities, as well as related issues as outlined in paragraph 19 above.”).



not be decisive in assessing his/her request of asylum. All significant elements should be considered in establishing if the act in question constitutes a political or a non-political crime. If the motivation behind the act is both political and personal, the political aspect should carry more importance in consideration of the crime and a connection between the political motive and the criminal activities should exist, as well.164

Secondly, the nature of the act committed should be balanced against the persecution feared by the applicant.165 Consequently, a well-founded objective fear of capital punishment, torture or other harsh or inhuman treatment may count against application of the exclusion clause depending upon the specific character of the act committed, thereby, bringing the Article in compliance with the central principle of non-refoulement of Article 33(1) of the [1951 Geneva] Convention [and of article 2.3 of the 1969 OAU Convention].166

In any case, this Article would like to point that throughout the 1990s, the Senegalese security forces systematically used torture167 to extract “confessions”

164. U.N. HIGH COMM’R FOR REFUGEES, supra note 97, at ¶ 152. 165. See Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment art. 3.1, Dec. 10, 1984, 1465 U.N.T.S. 112, 114 (“1. No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”).

166. HATHAWAY, supra note 155, at 225 (“[Article 33.1] applies only to persons believed to have committed serious pre-entry crimes which remain justiciable and the gravity of which outweighs that of the anticipated persecution.”) For the principle of non-refoulement as it is conceived and applied in Africa, see Cristiano d’Orsi, Sub-Saharan Africa: Is a New Special Regional Refugee Law Regime Emerging?, 68 HEIDELBERG J. INT’L L. 1057, 1061 (2008) (“In the African system, the principle of non-refoulement can be considered a pillar. The 1969 OAU Convention establishes it without exception. This principle is not restricted to victims of persecution but is extended to individuals who become refugees due to social and civil turmoil, as well as natural catastrophes and famine. This principle applies both starting at the border and within the territory of the country concerned, and concerns all individuals, recognized or not as refugees, pending the determination of their status. According to a minority doctrine, this principle in the African system would mean there is no place even for expulsion and would oblige contracting states to grant at least a temporary asylum to people fleeing persecutions.”) (citations omitted).

167. Rome Statute of the International Criminal Court, supra note 139, art. 7.2(e) & (i) (“(e) ‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody



from men and women who were often arbitrarily arrested because they belonged to the Diola community . . . During the four Amnesty International missions to Casamance between 1997 and 2003, the organization documented several methods of torture regularly used by the Senegalese security forces on people detained in police custody, which can legally be for eight days.168

While Guinea-Bissau ratified the 1984 UN Convention against Torture in 2013, The Gambia is still not yet a party to it.169

Lastly, other conditions should be considered. We may have aggravating circumstances including whether the applicant is already a recidivist in committing offenses or if he or she has a criminal record. Conversely, we may also have mitigating circumstances consisting of the claimant’s intellectual capability, his/her age when the act or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions . . . . (i) ‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”) (emphasis added).

168. Amnesty Int’l, Senegal: Land of Impunity, supra note 152, at 10 (“Detainees were beaten for hours whilst hanging by a rope from the ceiling; others had cigarettes stubbed out on their bodies and molten plastic poured on their bodies; others were made to ingest toxic substances, such as petrol and some received electric shocks.”); see also Amnesty Int’l, Widespread Use, supra note 152 (“In the context of the Casamance conflict, hundreds of suspected MFDC sympathizers have been arrested by the Senegalese army. More than 150 people, most of them charged with threatening the security of the state, are still being held without trial in Dakar and Ziguinchor, the Casamance regional capital. Some of those being held appear to be prisoners of conscience, arrested during mass raids carried out by the army and with no evidence of their individual participation in acts of violence. The Senegalese army is also believed to be responsible for the “disappearance” and extrajudicial executions of unarmed villagers, who have not been seen since they were arrested in their homes or during roadside security checks in Casamance.”).

169. See Convention Against Torture, supra note 165. For the list of ratifications at this convention, see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (last visited Feb. 1, 2015). Guinea-Bissau is part of this convention since 24 September 2013 while The Gambia, although having signed the Convention on the 23 October 1985, is not part of it, yet.



was committed, as well as the length of time between the act and the assessment of the request for asylum. Another mitigating circumstance may be whether the applicant was somehow coerced into committing the offensive activity.170

In terms of doctrine, Fatsah Ouguergouz in 2003 confirmed doubts on the present definition of the expression “subversive activities” in the 1969 OAU Convention. Ouguergouz promoted a stricter definition, expressly including, for instance, armed or terrorist actions. In his opinion, this could be “[t]he only way to eliminate all risk of arbitrariness regarding the exercise by the refugee” of his or her rights.171 C.R. Snyman, however, does not share such an opinion, asserting that:

Terrorism is a more serious offence than . . . subversion . . . . The death penalty may be imposed for terrorism, but not for subversion […]. It would be an anomaly if the mental element of terrorism might be proved by dolus eventualis but not that of the less serious offences of subversion . . . .172

And, incidentally, Article IV (“Principles”), paragraph o) of the 2000 AU Constitutive Act reads: “The Union shall function in accordance with the following principles: […] o) respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.” For the African Union, acts of terrorism are not included in “subversive activities,” but they do constitute a separate, specific category.

The “gap” resulting from lack of an agreement on what constitutes an “act of terrorism” seems to have been essentially bridged by the definition contained in Article 1.3 and Article 3 of the 1999 OAU Convention on the Prevention and Combating of Terrorism (1999 OAU Convention).173

170. U.N. HIGH COMM’R FOR REFUGEES, supra note 97, at ¶ 157. 171. OUGUERGOUZ, supra note 114, at 352. 172. C.R. Snyman, Dolus Eventualis in the Offences of Terrorism,

Subversion and Sabotage, 107 S. AFR. L. J. 365, 375 (1990). 173. See OAU Convention on the Prevention and Combating of Terrorism

art 1.3, Jul. 14, 1999, 2219 U.N.T.S 179, 209 (“3. ‘Terrorist act’ means: (a) any act which is a violation of the criminal laws of a State Party and which



This definition was further confirmed in Article 1.12 of the 2004 Protocol to the 1999 Convention (2004 OAU Protocol).174 In an effort to reduce the rigidity present in the 1999 Convention, the 2004 Protocol prohibits torture and other degrading and inhumane treatments, as well as racist and discriminatory treatments of individuals suspected of terrorism conduct that conflict with international law.175

Nevertheless, the 1999 OAU Convention, in its preamble, reaffirmed “the legitimate right of peoples for self-determination and independence pursuant to the principles of international law and the provisions of the

may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or (ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or (iii) create general insurrection in a State; (b) any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i) to (iii).”). But see id. Art. 3.1, 2219 U.N.T.S at 210 (“Notwithstanding the provisions of Article 1, the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.”). This Convention has been adopted in Algiers on the 14 July 1999. It entered into force on the December 6, 2002 according to the provisos contained in its Article 20 and thanks to the accession of Ghana. As of March, 1 2015, 41 countries in the Sub-Saharan Africa area have ratified this instrument.

174. See Protocol to the 1999 OAU Convention on the Prevention and Combating of Terrorism art. 1.12, Jul. 8, 2004, available athttp://www.au.int/en/sites/default/files/PROTOCOL_OAU_CONVENTION_ON_THE_PREVENTION_COMBATING_TERRORISM.pdf (last visited, Oct. 18, 2015). This Protocol has been adopted in Addis Ababa on July 8, 2004. According to the provisions stipulated in its article 10: “This Protocol shall enter into force thirty days after the deposit of the fifteenth (15th) instrument of ratification or accession.” The Protocol entered into force on January 27, 2014, given that the Sahrawi Arab Democratic Republic deposited its instrument of ratification that day. This is the 15th member of the African Union to accede the 2004 Protocol. See http://www.au.int/en/sites/default/files/Protocol%20on%20terrorism.pdf (last visited Oct. 18, 2015).

175. Protocol to the 1999 OAU Convention, supra note 174, at art 3.1 (k).



Charters of the Organization of African United Nations as well as the African Charter on Human and People’s Rights.”176 Additionally, UNHCR clarifies that in the African context, failed coup d’état attempts - doctrinally viewed as an insupportable breach of the principles of democracy and the rule of law177- may result in individuals who fall within the ambit of the 1951 convention:

[I]n Africa, a coup is often the only means through which a change in the political regime can be effected . . . . As a result, fear of persecution arising from an unsuccessful coup attempt may be regarded as grounded upon political opinion/activities and within the ambit of the 1951 Convention.178

And, according to Nsongurua J. Udombana, generally, the legal characterizations of terrorism are inclined to disregard the vagueness between a freedom-fighter and a terrorist,179 but the [1999] OAU Convention constitutes an exception, by excluding from its terrorist acts, “[T]he struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.”180

So far, in Africa, there is a mounting agreement that people may use their right to self-determination where they are not represented in the local administration, or if their human rights are violated openly and regularly.181

176. OAU Convention on the Prevention and Combating of Terrorism, supra note 173, at Preamble.

177. Shelton, supra note 103, at 66 (citing Resolution on the Military, Res. 10 (XVI) 94 (Nov. 3, 1994), in ACHPR, 8 ANN. ACTIVITY REP. (1994-95), Resolution on the Situation in Comoros, Res. 34 (XXV) 99, and Resolution on the Situation in Niger, Res. 35 (XXV) 99, in ACHPR, 12 ANN. ACTIVITY REP., Annex IV (1998-99)).

178. Letter from UNHCR to Bradford Smith, Esq., quoted in Matthew Zagor, Persecutor or Persecuted: Exclusion under Article 1F a) and b) of the Refugees Convention, 23 U. NEW S. WALES J. 164, 181 (2000).

179. Arunabha Bhoumik, Democratic Responses to Terrorism: A Comparative Study of the United States, Israel and India, 33 DENV. J. INT’L L. & POL’Y 285, 288 (2005).

180. Protocol to the OAU Convention on the Prevention and Combating of Terrorism, supra note 174, at art 3.1.

181. Nsongurua J. Udombana, Battling Rights: International Law and Africa’s War on Terrorism, 13 AFR. Y.B. INT’L L. 67, 103 (2005) (discussing self-determination in Africa) (citing Amardeep Singh, The Right of Self-



That is precisely one of the claims advanced in the past by members of the MFDC.182 The danger, however, is also that popular resistance against economic misconduct, and bad governance in Senegal might be interpreted as acts of terrorism by the central government.183

The 1999 OAU Convention directly touches on the question of refugees, clearly affirming that states need to ascertain that the asylum-seeker, in order to receive asylum, is not involved in any terrorist activity.184

As a corollary, the 1999 OAU Convention prescribes to sue and detain any person alleged to be a terrorist. In addition, the Convention requires that any country detaining a supposed criminal will indicate, subject to notification to any other country concerned, whether applying its jurisdiction over the alleged terrorists; and to Determination: Is East-Timor a Viable Model for Kashmir?, 8 HUM. RTS. BRIEF 1, 9 (2001)).

182. Supra Part 3–4.183. Udombana, supra note 181, at 103.184. Protocol to the OAU Convention on the Prevention and Combating

of Terrorism, supra note 174, at art. 4.2 (g); see also Plan of Action of the African Union High-Level Inter-Governmental Meeting on the Prevention and Combating of Terrorism in Africa, Algiers, Alg., September 11-14, 2002, Mtg/HLIG/Conv. Terror/Plan. (I), ¶ 11 (n), available at http://www.caert.org.dz/official-documents/plan_action_en.pdf (last visited Oct. 1, 2015) [hereinafter 2002 Plan of Action] (“Member States undertake to: . . . (n) ensure that an asylum seeker is not involved, directly or indirectly, in terrorism related activities prior to granting asylum to the concerned person.”; S.C. Res. 1373, ¶ 3(f), U.N. Doc. S/RES/1371 (Sept. 28, 2001), available at http://www.refworld.org/docid/3c4e94552a.html (last visited Sept. 3, 2015) (“The Security Council . . . 3. Calls upon all States to: . . . (f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts . . . .”); Sam Moki, The Role of the African Union: Integration, Leadership and Opportunity, in AFRICA AND THE WAR ON TERRORISM 113, 115 (John Davis ed., 2007) (“Through its Plan of Action of 2002, the AU’s role in dealing with continental terror has been enormous. It acknowledged the destructive and manipulating nature of terrorism through a carefully drafted definition of terrorism. It called for the ratification and implementation of the Algiers Convention of 1999, provided for police and border control, harmonized legal and judicial measures, called for compliance with international agreements dealing with terrorism, adopted measures designed to curtail the financing of terrorism, called for a more open information exchange regime, and created the Peace and Security Council to implement the Plan.”).



prosecute him/her, without any exception,185 under its domestic jurisdiction in case of non-extradition.186 In the presence of a demand of extradition, the 1999 OAU Convention compels the custodial state to extradite any alleged terrorist who has been found guilty for any act carried out in another state party.187 For this purpose, “a state party in whose territory an alleged offender is present shall be obliged, whether or not the offence was committed in its territory, to submit the case without undue delay to its component authorities for the purpose of prosecution if it does not extradite that person.”188

Moreover, Article 9.1 of the 1999 OAU Convention further instructs the state parties to incorporate any terrorist act (as defined in the Convention) as a crime prescribing extradition in any bilateral extradition treaty between them.189 In this regard, we note that Senegal,

185. Udombana, supra note 181, at 112. 186. Protocol to the OAU Convention on the Prevention and Combating

of Terrorism, supra note 173, at art. 1-7, .2 (“1. Upon receiving information that a person who has committed or who is alleged to have committed any terrorist act as defined in Article 2 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its national law to investigate the facts contained in the information. 2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its national law so as to ensure that person’s presence for the purpose of prosecution.”).

187. Id. at art. 8.1 (“1. Subject to the provision of paragraphs 2 and 3 of this article, the States Parties shall undertake to extradite any person charged with or convicted of any terrorist act carried out on the territory of another State Party and whose extradition is requested by one of the States Parties in conformity with the rules and conditions provided for in this Convention or under extradition agreements between the States Parties and within the limits of their national laws.”).

188. Id. at art. 8.4; see also id. at art. 4.2 (h) (“2. States Parties shall adopt any legitimate measures aimed at preventing and combating terrorists acts in accordance with the provisions of this Convention and their respective national legislation, in particular, they shall do the following: . . . (h) arrest the perpetrators of terrorist acts and try them in accordance with national legislation, or extradite them in accordance with the provisions of this Convention or extradition treaties concluded between the requesting State and the requested State and, in the absence of a treaty, consider facilitating the extradition of persons suspected of having committed terrorist acts.”).

189. Id. at art. 9; see also 2002 Plan of Action, supra note 184, at ¶ 12 (f) (“Member States undertake to . . . (f) conclude extradition and mutual legal assistance agreements, where necessary, and adopt the legislation that would enable Member States to cooperate effectively.”).



along with The Gambia and Guinea-Bissau, the two neighboring countries that have been accused several times by Dakar of supporting the MFDC and giving hospitality to its members,190 are all parties to the 1994 ECOWAS Convention on Extradition. Article 5 of the Convention (“Inhuman or Degrading Treatment or Punishment”) clearly affirms:

Extradition shall not be granted if the person whose extradition is requested has been, or would be, subjected to torture or cruel, inhuman or degrading treatment or punishment in the requesting State or if that person has not received, or would not receive the minimum guarantees in criminal proceedings.191

In 2007 the Banjul Magistrate Court found seven people from Casamance guilty of conspiring to carry out acts of terrorism against Senegal “[i]n a manner prejudicial to the security and national defense of The

190. Supra Part 3. 191. Economic Community of West African States, Convention A/P.1/8/94

on Extradition art. 5, Aug. 6, 1994, available at http://documentation.ecowas.int/download/en/legal_documents/protocols/Convention%20on%20Extradition.pdf (last visited Sept. 7, 2015). (Rule 18.2) See id. at art. 3 (“1. Extradition shall be granted under certain circumstances in respect of offences punishable under the laws of the requesting State and of the requested State by deprivation of liberty for a minimum period of two years. Where there has been a conviction and a prison sentence has been imposed in the territory of the requesting State, extradition shall be granted only if a period of at least 6 months remains to be served. 2. If the request for extradition includes several separate offences each of which is punishable under the laws of the requesting State and the requested State by deprivation of liberty but of which some do not meet the penalty requirements set out in paragraph 1 of this Article the requested State shall have the right to grant extradition for the latter offences provided that the person is to be extradited for at least one extraditable offence.”); id. at art. 4 (“1. Extradition shall not be granted if the offence in respect of which is requested is regarded as a political offence or as an offence connected with a political offence. 2. The same rule shall apply if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of race, tribe, religion, nationality, political opinion, sex, or status. 3. Implementation of this Article shall not affect any prior or future obligations assumed by States under the provisions of the Geneva Convention of 12 August, 1949 and its additional Protocols and other multilateral International Conventions.”); id. at art. 32.1 (“1. This Convention shall supersede the provisions of any Treaties, Conventions or Agreements on extradition concluded between two or several States except as provided under paragraph 3, article 4 of this Convention.”).



Gambia.”192 Therefore, these persons were accused not of committing terrorist acts per se, but because the alleged terrorist acts would have endangered the security of the host state. Therefore, these Casamancais accused of other crimes concerning the Gambian jurisdiction were not extradited to Senegal, but rather imprisoned in the Gambian Mile II Central Prisons.193

In Africa, state practice has been historically contrary to the extradition of political lawbreakers, often considered guilty of crimes that were nothing more than the consequences of the exercise of important political freedoms. Conversely, actions such as the assassination of heads of states were habitually considered actions deserving extradition.194

Yet, until now, these last acts have not concerned the members of MFDC. In 2002, the ACHPR clarified that:

. . . 9. Circumstances such as state of war, threat of war, internal political instability or any other public emergency, shall not be invoked as a justification of torture, cruel, inhuman or degrading treatment or punishment. 10. Notions such as “necessity,” “national emergency” . . . and “ordre public”195 shall not be invoked

192. Modou Sanyang, Bakary Samateh, & Abba Gibba, Eight Casamance Citizens Charged with Terrorism, Espionage, THE POINT (Oct. 2, 2007), available at http://wow.gm/africa/gambia/banjul/article/2007/10/2/eight-casamance-citizens-charged-with-terrorism-espionage (last visited Sept. 7, 2015).

193. Id. About the situation of the Mile II Central Prisons, see Sheriff Bojang Jr., The Gambia’s Secret Torture Chambers, RADIO NETHERLANDS WORLDWIDE: AFRICA (Mar. 12, 2010, 5:54 PM), available at https://wazaonline.com/en/archive/the-gambias-secret-torture-chambers (last visited Sept. 7, 2015) (“Less than 15 km away from the Tourism Development Area, a vast area where most of the hotels are located, are the headquarters of the National Intelligence Agency (NIA) and the Mile 2 Central Prison. These are The Gambia’s two most notorious and hostile detention centers where the authorities illegally detain and torture people they perceive as enemies of the state.”); see also U.S. Dep’t of State, 2009 Country Reports on Human Rights Practices - The Gambia (Mar. 11, 2010), available at http://www.refworld.org/docid/4b9e52b4c.html (last visited Sept. 7, 2015).

194. Udombana, supra note 181, at 112–13. But see John Dugard, International Terrorism: Problems of Definition, 50 INT’L AFF. 67, 67 (1974) (“[T]he equation of anarchism . . . is probably incorrect.”).

195. See Wyndham A. Bewes, Public Order (Ordre Public), 37 L.Q. REV. 315, 315 (1921) (“This phrase [ordre public], invented by the authors of the Code Napoleon, is somewhat similar to our “public policy” and has



as a justification of torture, cruel, inhuman or degrading treatment or punishment. 11. Superior orders shall never provide a justification or lawful excuse for acts of torture, cruel, inhuman or degrading treatment or punishment.196

However, African countries seem more and more to abuse the practice of the extradition, ignoring –or pretending to ignore- that the standards of protection of the extradited person abroad are far from those generally guaranteed in a democracy.197

The legal developments in the very topical field of terrorism, through the adoption of the regional 1999 Convention on the Prevention and Combating of

been adopted by many other subsequent Codes; and while indefinite in its meaning, serves the most useful purpose of concreting in two words what would require a treatise to explain. It will be granted without cavil that foreign rights will never be recognized where sovereignty is infringed, and it follows that a breach of public order will not be tolerated, since the preservation of public order is one of the necessary functions of a State.”). For a general definition of “public policy”, see Robert Clowry Chapman, Public Policy, 3 MICH. L. REV. 308, 308 (1894) (“Public policy is a controlling principle in the law, that subordinates the interests of the individual, and limits his right of contract in cases where the public welfare demands such limitation; so it may be said that public, not individual rights are its chief concern, though individual rights are not disregarded.”).

196. ACHPR, Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, ACHPR/Res. 61 (XXXII)02, at 17–23 (Oct. 23, 2002), available at http://www.achpr.org/instruments/robben-island-guidelines-2008/ (last visited Sept. 7, 2015); see also 1951 Geneva Convention, Art. 33.2 (“2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”); Bruin & Wouters, supra note 160, at 18, 20–21 (“Although Article 33 (2) Refugee Convention does not specify the facts and circumstances that constitute a danger to the national security and leaves a margin of appreciation for states, the article does demand a level of risk substantiated by proof. The threshold is high. It applies to persons who try to overthrow the government by force or other illegal means, who are endangering the constitution, the territorial integrity, the independence or the peace of the country of refuge. . . . [A]rticle 33.2 of the Refugee Convention allows deportation if a provable danger to the national security of the country of refuge exists or if the refugee is convicted for a particularly serious crimes and constitutes a provable danger to the community of the country of refuge, irrespective of the persecution the refugee might be subjected to, unless the persecution can be qualified as torture or inhuman or degrading treatment or punishment. In those cases, deportation is not permitted.”).

197. Udombana, supra note 181, at 125.



Terrorism, have been considered a major development of human rights promotion and protection in Africa. The AU should be able to maintain this progress in conformity with international standards,198 especially after having discovered that international terrorism had roots in Africa199 and in Senegal. However, we would like to observe that members of the MFDC could hardly have been designated as “terrorists” with certainty in the different analyses and reports drafted on the situation in Casamance, 200 even very recent ones.201

WHERE WE ARE NOW IN LOOKING FOR A WAY OUT OF THE CONFLICT

To its adjacent neighbors, The Gambia and Guinea-Bissau, the Casamance question represents more of an international affair than a civil war, despite national attempts to present it as a mere internal conflict within Senegal.202 According to Ernest Harsch, up to 5,000 people were killed during the first two decades of fighting,

198. See generally, R. MURRAY, HUMAN RIGHTS IN AFRICA: FROM THE OUA TO THE AFRICAN UNION (2004). But see id. at 132 (“[H]uman rights standards on due process, fair trial and protection from torture in particular were not more explicitly laid out in the [1969 OAU] Convention.”).

199. See, e.g., Princeton N. Lyman & J. Stephen Morrison, The Terrorist Threat in Africa, 83 FOREIGN AFF. 75, 75–86 (2004). In their general analysis of the various situations in the continent, the authors mentioned a couple of times also Senegal but without any specific reference to the question of Casamance. See id. at 83 (“Senegal, Mali, and Niger -- -all predominantly Muslim -- -have become functioning democracies with close relationships with Washington. The United States has engaged these countries (along with Chad) in the Pan Sahel Initiative, a program to bolster security and intelligence along the Sahara’s southern border.”).

200. See Amnesty Int’l, Climate of Terror in Casamance, AFR/49/01/98 (Feb. 1 1998), available at http://www.refworld.org/docid/3ae6a9a04.html (last visited Sept. 7, 2015).

201. U.S. Dep’t State, Country Reports on Terrorism 2013 – Senegal (Apr. 30, 2014), available at http://www.refworld.org/docid/536229c1b.html (last visited Sept. 7, 2015) (not mentioning the situation in Casamance); Moreover, for instance, the same document of 2005 indicated the MFDC as “rebels” and not as “terrorists”. See also U.S. Dep’t State, Country Reports on Terrorism 2005 - Senegal (Apr. 28, 2006), available at http://www.refworld.org/docid/4681081119.html (last visited Sept. 7, 2015) (mentioning the conflict in Casamance only briefly).

202. Evans, supra note 47, at 16 (“The Casamance conflict helped precipitate the Bissau-Guinean civil war, and armed banditry has spread into The Gambia as well as eastwards into areas of Kolda region previously untouched by the conflict.”).



more than 60,000 have been internally displaced and tens of thousands more have sought refuge in neighboring countries203 by 2009, when the fighting reached its peak.204 One advantage held by the MFDC was its capacity to operate from bases across the border with Guinea-Bissau. The presence of a large number of Casamancais refugees in Guinea-Bissau, on top of ethnic and family ties with local communities, facilitated the operation of MFDC there.205

Fundamental changes in the strategies of the MFDC in the Casamance region in the last two decades have been caused by changes in the nature of resources available to it. With the support of its constituency, the Casamance region seemed to have transformed itself from a grievance-based insurgency in the 1980s into an instrument at the disposal of neighboring countries during the 1990s and 2000s.206

However, the Senegalese government tends to soften the situation in the region by underlining its effort to treat Casamance as an integral part of Senegal like the rest of the country,207 and urging the return of the refugees and IDPs in the region.208 Nevertheless, the endeavors made

203. See Ernest Harsch, Peace Pact Raises Hope in Senegal, AFR. RENEWAL, available at http://www.un.org/africarenewal/magazine/april-2005/peace-pact-raises-hope-senegal (last visited Sept. 7, 2015).

204. Institutional Regional Info. Networks, Senegal: Heaviest Fighting in Years Hits Casamance 9 (Aug. 26, 2009), available at http://www.refworld.org/docid/4a9783ffc.html (last visited Sept. 7, 2015).

205. Harsch, supra note 203.206. Faye, supra note 45, at 63.207. See Senegal 2013 Periodic Report ¶ 11 (“Plus particulièrement, à

propos de la Casamance, il y a lieu de préciser que dans le domaine des droits économiques, culturels et sociaux, cette région du Sénégal n’est nullement défavorisée. Au contraire, la Casamance est privilégiée dans ce domaine. En effet, compte tenu de sa spécificité tant géographique que post-conflictuelle, la Casamance a bénéficié de la mise en œuvre d’un Programme de développement spécifique comme prévu par l’Accord Général de Paix précité (the 2004 Peace Treaty).”) [More specifically, about the Casamance there made clear that in the field of economic, cultural and social rights, this region of Senegal is not disadvantaged. On the contrary, the Casamance is privileged in this area. Indeed, given that post-conflict both geographical specificity, Casamance has benefited from the implementation of a Programme of specific development as provided for in the General Peace Agreement].

208 .Id. ¶ 13. For a general overview of the situation of IDPs in Sub-Saharan Africa, see Cristiano d’Orsi, Strengths and Weaknesses in the



by the Senegalese government, from the regionalization of the country in the late 1990s to the massive investments in the regional economy of the last decade, are proved to be insufficient in order to resolve the conflict definitively.209

The situation in Casamance is still far from resolution. Of course, the problem of the MFDC members is connected with the resolution of the conflict and the biggest effort should be made in trying to ensure that all victims of human rights violations benefit from redress and assurance of non-repetition.210 In this sense, the policy of general impunity towards the MFDC members, formally sanctioned by the amnesty promulgated in 2004, seems to still have left aftershocks within many segments of the Casamance population.211

Nevertheless, the MFDC members have the right, according to what is also stated in Article 12.3 of the 1981 African Charter on Human and Peoples’ Rights, to apply for asylum if they fear persecution.212 What is stated in this document is a key concept because this convention, in addition to other human rights standards, means that members of the MFDC are entitled to basic rights and must be treated with dignity when their application is being reviewed.213 Of course, an effort should be made by the receiving countries in screening genuine MFDC “freedom fighters” from “criminals” belonging to the same organization.214

Such a screening could be made through the adoption of credible domestic legislation on counter-terrorism,

Protection of the Internally Displaced Persons in Sub-Saharan Africa, 28 CONN. J. INT’L L. 73, 114 (2012) (“[I]nternational organizations can effectively play a supporting role in assisting and protecting IDPs in Sub-Saharan Africa but they cannot replace governments in protecting their own people.”).

209. Panara, supra note 27, at ¶ 31. 210. Amnesty Int’l, supra note 26, at 8.211. Amnesty Int’l, Land of Impunity, supra note 152, at 12.212. African Charter on Human and Peoples’ Rights, supra note 103, at

art. 12.3, 1520 U.N.T.S at 248.213. Naldi & d’Orsi, supra note 28, at 151–52. 214. See L.F.E. Goldie, Profile of a Terrorist, 14 SYRACUSE J. INT’L L. & COM.

125, 127 (1987) (“Terrorists . . . intend to harm non-combatants: attacks on them provide the means whereby the terrorists exert their will upon third persons, upon the general population and upon governments.”).



although Rene Bruin and Kees Wouters observed, “Terrorism is a political term and not a legal term.”215

In many African countries, including The Gambia and Guinea-Bissau, the main destinations of the MFDC members, the conception and the application of counter-terrorism measures have found different obstacles in their path. The first of them was a general disinclination to embrace anti-terrorism legislation attributing extensive powers to the local government in a situation where the principles of the rule of law were substantially new.216 In any case, it now seems clear to the African countries that certain acts of violence should not be treated as “crimes” in the sense of Article 1F(b) of the 1951 Geneva Convention and 1.5(b) of the 1969 OAU Convention. These acts include those by movements fighting in a national liberation war (e.g., the ones undertaken by the MFDC in Casamance), subject to the condition that they did not commit war crimes or crimes against humanity.217

In the end, this Article agrees with I.P. Blishchenko that individuals struggling for their survival are to be considered subjects of international law having the same opportunities with other subjects of international law, such as the right to set up autonomous relations with foreign states, and the ability to conclude international agreements. In addition, third states not only have a right to establish relations with a fighting people, but are also required to help them in the implementation of the right of self-determination.218 On the other hand, armed

215. Bruin & Wouters, supra note 160, at 15. 216 See Andre Thomashausen, The War on Terror in Africa in

International Law and State Practice, 32 S. AFR. Y.B. INT’L L. 85, 94 (2007); see also d’Orsi, Sub-Saharan Africa: Is a New Special Regional Refugee Law Regime Emerging?, supra note 166, at 1079 (“Regarding [African] domestic legal systems, it should be noticed that existing laws and proposed refugee bills throughout Africa do not take into consideration the complex realities posed by new circumstances, such as the war against terrorism.”).

217. Kӓlin & Künzli, supra note 105, at 77; James C. Simeon, Complicity and Culpability and the Exclusion of Terrorists from Convention Refugee Status Post-9/11, 29(4) REFUGEE SURV. Q. 104, 115 (“[T]errorism can occur . . . in the context of armed conflict whether it is at the international or at the non-international level or inter-State or intra-State levels. Consequently, terrorism can also be a war crime or a crime against humanity and potentially a crime against peace.”).

218. See I.P. Blishchenko, The National Liberation Movement and International Humanitarian Law, 12 MIL. L. & L. WAR REV. 308, 308–09



opposition movements such as the MFDC must respect the fundamental rules of humanitarian law. Based on the principle of protection of the individual contained in Common Article 3 of the four 1949 Geneva Conventions, MFDC members should, for instance, abstain from the deliberate and arbitrary killing of people taking no active part in hostilities.219

As a Senegalese official affirmed: « L’unité du Sénégal contemporain n’est pas synonyme d’uniformité. La conscience nationale n’a pas effacé la riche diversité héritée d’un long passé ».220 It is nevertheless clear that the situation in Casamance is not only a threat to peaceful resolution to the conflict, but also a challenge to the “center-peripheries” model on which the political practice of Senegal rests. The crisis of the “peripheries,” as in Casamance, seems to prove that no democratic idea of society can work exclusively at the center without the peril of imploding the entire system. In this regard, Mamadou Diouf thought that whether “a break with the center-peripheries model is imposed as a solution; it will be probably effective only inside new regional and sub-regional political entities.”221

(1973) (“In accordance with duty of states to render the fighting people’s assistance in the early exercise of their right to self-determination, it is necessary to apply sanctions against a state which hinders the implementation of this right.”).

219. Amnesty Int’l, Widespread Use, supra note 152; see also Rome Statute of the International Criminal Court, A rt. 8.2 (b), U.N. Doc. A/CONF.183/9 (2002), available at http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf) (“[For the purpose of this Statute, “war crimes” means: . . . (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.”).

220. Quoted from Senegal 2003 Periodical Report 29. The English translation for this section stands as follows: “The unity of contemporary Senegal is not synonymous with uniformity. The national conscience has not erased the rich diversity inherited from a long history.”

221. Diouf, supra note 32, at 239.



SEVERAL CONCLUSIVE IDEAS ABOUT THE CONFLICT IN CASAMANCE AND THE MFDC MEMBERS

As seen above, despite the reassurances given by the Senegalese authorities on the situation in Casamance, Senegal has not always been free from criticism about its policy violation of human rights. This is clearly shown by a 2012 ACHPR resolution, where the ACHPR urged the government in Dakar “[t]o guarantee the right to freedom of opinion, of expression, of assembly and of peaceful demonstration in conformity with the Constitution of Senegal.”222 Such an affirmation can be coupled with what the ACHPR declared more than a decade before, when it urged the authorities in Dakar to assist all refugees and IDPs, promote their return to their homes in security, 223and accelerate the peace process.224 In the end, this last outcome possibly remains for us the most desirable solution to put an end to this long-lasting crisis, along with the possible organization of a democratic and informed referendum225 in Casamance. Through a possible referendum, the local Diola people, who continue considering themselves the target of discrimination by the national government,226 can express what they wish for

222. ACHPR, Resolution on the Human Rights Situation in Senegal, ACHPR/Res. 208 (Feb. 22, 2012), available at http://www.achpr.org/sessions/11th-eo/resolutions/208/ (last visited Sept., 8 2015).

223. ACHPR, supra note 87, at 35 (“The Government should . . . assist all displaced persons and refugees, encouraging them to return to their homes by guaranteeing their security.”).

224. Institutional Regional Info. Networks, Senegal: Finding Incentives for Peace in Casamance (Jun. 25, 2008), available at http://www.refworld.org/docid/4864a44d1a.html (last visited March 1, 2015) (“On 10 June [2008] displaced families marched on the streets of Ziguinchor, the capital, alongside community, religious leaders and local officials to demand that the government do more to reinvigorate the peace process so they could return to their homes.”).

225. See Geoffrey de Q. Walker, The People’s Law: Initiative and Referendum, 15 U. QUEENSLAND L. J. 33, 45 (1988) (“The establishment of direct legislation is an opportunity to revitalize the ideal of democracy in the minds of ordinary people so that they will remain capable of wise self-government.”).

226. See, e.g., Minorities at Risk Project, Assessment for Diolas in Casamance in Senegal (Dec. 31, 2003), available at http://www.refworld.org/docid/469f3acc7.html (last visited Sept. 8, 2015). (Rule 18.2) (“The Diolas and other groups in Casamance continue to be



the future of the region. Secession may remain an option, although major autonomy in the existing Senegalese framework could be the most viable solution to reject the claims of separatists, as it happened in Nigeria in the past.227 Such a referendum could allow both the concerned organizations and the global community to finally understand whether the MFDC represents Casamance as a whole, or just some of the more extremist fringes of the region exclusively.

An alternative for the MFDC could also be to seek an opinion from the ACHPR, which has already expressed its views on similar situations in the past, namely in the case of Katanga228 and Southern Cameroon.229 Given these precedents, however it is unlikely that the MFDC would be satisfied by a possible communication from the ACHPR. In the Katanga case, the ACHPR observed that:

In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in government . . . the Commission holds the view that Katanga is obliged to exercise a

repressed and excluded from the political process, and there appears to be no efforts by the Senegalese government to improve the situation. Being isolated from the rest of the country, the militant activity of the Casamancais is likely to continue.”).

227. See L. Gray Cowan, Federation for Nigeria, 10 INT’L J. 51, 52 (1954) (“But given what they feel to be a reasonable voice in the government of the Federation, any separationist feeling among the Northerners [of Nigeria] will probably be confined to a few religious zealots.”).

228. Katangese Peoples’ Congress v. Zaire, ACHPR, Communication No. 75/92, in 8 ANN. ACTIVITY REP. (1994–95). For the role of the communications in the ACHPR’s activity, see ACHPR, Information Sheet No. 3, Communication Procedure Organisation of African Unity, Communication available at http://www.achpr.org/files/pages/communications/procedure/achpr_communication_procedure_eng.pdf, 3 (last visited Sept. 8, 2015) (“One of the principal functions of the Commission is to protect the rights and freedoms guaranteed in the Charter under conditions laid down therein. To achieve this, the Commission is empowered, among other things, to receive and consider: Communications submitted by one State claiming that another State party to the Charter has violated one or more of the provisions in the Charter (articles 48-49); and other Communications from individuals and organizations alleging that a State party to the Charter has violated one or more of the rights guaranteed therein, (article 55).”).

229. Kevin Mgwanga Gunme v. Cameroon, ACHPR, Communication No 266/2003 (2009), in 26 ANN. ACTIVITY REP. (2009).



variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.230

In the Southern Cameroon case, it was established that “[t]he Commission is obliged to uphold the territorial integrity of the respondent State. As a consequence, the Commission cannot envisage, condone or encourage secession, as a form of self-determination for the Southern Cameroons. That will jeopardize the territorial integrity of the Republic of Cameroon.”

The Commission therefore added:191. That secession is not the sole avenue open to Southern Cameroonians to exercise the right to self-determination. The African Charter cannot be invoked by a complainant to threaten the sovereignty and territorial integrity of a State party. The Commission has however accepted that autonomy within a sovereign state, in the context of self-government, confederacy, or federation, while preserving territorial integrity of a State party, can be exercised under the Charter. In their submission, the Respondent State implicitly accepted that self-determination may be exercisable by the complainants on condition that they establish cases of massive violations of human rights, or denial of participation in public affairs.231

The Commission urged the government in Yaoundé to address the complaints uttered by the Southern Cameroonians through its democratic institutions.232

230. Katangese Peoples’ Congress v. Zaire, ACHPR, Communication No 75/92, in 8 ANN. ACTIVITY REP. (1994–95), ¶ 6.

231. Kevin Mgwanga Gunme v. Cameroon, ACHPR, Communication No. 266/2003, in 26 ANN. ACTIVITY REP. (2008-2009), at ¶¶ 190–91. See also id. at ¶¶ 199–200 (“199. The right to self-determination cannot be exercised, in the absence of proof of massive violation of human rights under the Charter. The respondent State holds the same view. The Commission states that the various forms of governance or self-determination such as federalism, local government, unitarism, confederacy, and self-government can be exercised only subject to conformity with state sovereignty and territorial integrity of a State party. It must take into account the popular will of the entire population, exercised through democratic means, such as by way of a referendum, or other means of creating national consensus. Such forms of governance cannot be imposed on a State Party or a people by the African Commission. 200 The African Commission finds that the people of Southern Cameroon cannot engage in secession . . . since secession is not recognized as a variant of the right to self-determination within the context of the African Charter.”).

232. Id. at ¶ 201 (“[The Commission] urges [Cameroon] to address the



Nevertheless, in another communication the ACHPR made it clear that it is not acceptable for a population to be dominated by another ethnic group in the same state. However, the claim for equal treatment cannot derive from the targeting of civilians instead of combatants. This form of “collective punishment” is not permitted in international law.233

In conclusion, this Article would like to make it clear once again that: “No resolution [of the conflict in Casamance] can be just, nor is likely to be sustainable, if it fails to establish human rights protection as a fundamental objective of the central government and any regional authority that may emerge.”234 This Article suggests that actors on the international scene, such as the U.S., the European Union and/or the African Union, could act as intermediaries with the government in Dakar to organize a democratic and well-informed referendum in Casamance. If independence of Casamance from Senegal does not seem practical through the aforementioned referendum, people from Casamance may decide for a major autonomy of the region, which may be conducive to the formation of the federal government system in Senegal.235 In the meantime, to try to find a solution that grievances expressed by Southern Cameroonians through its democratic institutions.”).

233. Sudan Human Rights Organization & Centre on Housing Rights and Evictions (COHRE) v. Sudan, ACHPR, Communication No. 279/03 & No. 296/05, in 28 Ann. Activity Rep. (2009-2010), ¶ 223; see also id. at ¶ 222 (“There is a school of thought […] which believes that the “right of a people” in Africa can be asserted only vis-à-vis external aggression, oppression or colonization. The Commission holds a different view, that the African Charter was enacted by African States to protect human and peoples’ rights of the African peoples against both external and internal abuse.”) (emphasis added).

234. Woocher, supra note 113, at 379. 235. A.V. Dicey, Federal Government, 1 L.Q. REV. 80, 80–81 (1885) (“A

federal state requires for its formation two conditions. There must exist, in the first place, a body of countries . . . so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality. It will, further, be generally found (if we appeal to experience) that lands which now form part of a federal state were at some stage of their existence bound together by close alliance or by subjection to a common sovereign. It was going further than facts warrant asserting that this earlier connection is essential to the formation of a federal state. But it is certain that where federalism flourishes it is in general the slowly-matured fruit of some earlier and looser



could fulfill the separatist region’s requests, Senegalese President Sall visited Casamance in late February 2015.236 He publicized the delivery of two ferries to expedite the communications between Ziguinchor and Dakar. This initiative was part of a new strategy of development projects to put an end to this lasting conflict in West Africa.237

connection. A second condition absolutely essential to the founding of a federal system is the existence of a very peculiar state of sentiment among the inhabitants of the countries which it is proposed to unite. They must desire union, and must not desire unity. If there be no desire to unite, there is clearly no basis for federalism.”).

236. Peace in Casamance: the mediation of Sant’Egidio continues. Approval of a document on humanitarian issues, Community of Sant’Egidio (July 18, 2014), available at http://www.santegidio.org/pageID/3/langID/en/itemID/9439/Peace_in_Casamance_the_mediation_of_SantEgidio_continues_Approval_of_a_document_on_humanitarian_issues.html (last visited Sept. 8, 2015) (“From 9th to 11th July 2014, a delegation of the Senegalese Government, under the mandate of H.E. President Macky Sall, and a delegation of the MFDC, under the mandate of its leader Salif Sadio, met in Sant’Egidio, in Rome, in the framework of the negotiations for Peace in Casamance… The parties agreed on the need to collaborate for a shared action in order to comfort the sufferance of the people, victim of the conflict in Casamance . . . . The parties approved a document concerning humanitarian issues.The delegations appreciated the atmosphere and frankness that prevailed during the talks in these days organised by the Community of Sant’Egidio, which according to its tradition, and neglected no effort for the successful development of the negotiations. The parties agreed on the need to continue the talks in Rome, with the mediation of the Community of Sant’Egidio.”). See also: New Negotiations Brokered by Sant’Egidio: Hope for Peace in Casamance?, ISS (4 Dec. 4, 2012)), available at http://www.issafrica.org/iss-today/new-negotiations-brokered-by-santegigio-hope-for-peace-in-casamance (last visited Sept. 8, 2015) (“In his reaction to the President’s overtures, Sadio, in a statement reported by Radio France Internationale on 4 July 2012, said he would like to ‘invite him to hold talks outside Africa under the auspices of the Community of Sant’Egidio’. Then a press release issued by the Community of Sant’Egidio on 17 October announced that delegations of the Senegalese government and the northern faction of the MFDC ‘mandated by Salif Sadio’ had met in Rome on 13 and 14 October 2012.”).

237. Macky Sall en Casamance: la relance économique pour seule annonce, RFI (Feb. 25, 2015) available at http://www.rfi.fr/afrique/20150225-senegal-dernier-jour-visite-president-macky-sall-casamance-mfdc-abdoulaye-balde/ (last visited Sept. 8, 2015).

file · web viewd’orsi, outlook on the conflict in casamance11/23/15 6:45 pm....

Documents