Author- Pranshu Singh, Co-author- Neelabh Shanker
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Interface between international humanitarian law and Refugee law
The relationship between international humanitarian law and refugee law is also a two-way cross fertilization.
Armed conflict and international humanitarian law are of relevance to refugee law and refugee protection in a number of ways.
First, to determine who is a refugee. Many asylum seekers are persons fleeing armed conflict and often violations of international humanitarian law. Does this make them refugees? Not every person fleeing an armed conflict automatically falls within the definition of the 1951 Refugee Convention, which lays down a limited list of grounds for persecution. While there may be situations, notably in conflicts with an ethnic dimension, where persons are fleeing because of a fear of persecution based on their “race, religion, nationality or membership of a particular social group”, this is not always the case.
Recognizing that the majority of persons forced to leave their state of nationality today are fleeing the indiscriminate effect of hostilities and the accompanying disorder, including the destruction of homes, food stocks and means of subsistence – all violations of international humanitarian law – but with no specific element of persecution, subsequent regional refugee instruments, such as the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration on Refugees have expanded their definitions to include persons fleeing armed conflict.
Moreover, states that are not party to these regional instruments have developed a variety of legislative and administrative measures, such as the notion of “temporary protection” for example, to extend protection to persons fleeing armed conflict.
A second point of interface between international humanitarian law and refugee law is in relation to issues of exclusion. Violations of certain provisions of international humanitarian law are war crimes and their commission may exclude a particular individual from entitlement to protection as a refugee.
International humanitarian law offers refugees who find themselves in a state experiencing armed conflict a two–tiered protection. First, provided that they are not taking a direct part in hostilities, as civilians refugees are entitled to protection from the effects of hostilities. Secondly, in addition to this general protection, international humanitarian law grants refugees additional rights and protections in view of their situation as aliens in the territory of a party to a conflict and their consequent specific vulnerabilities.
If respected, international humanitarian law operates so as to prevent displacement of civilians an d to ensure their protection during displacement, should they nevertheless have moved.
Parties to a conflict are expressly prohibited from displacing civilians. This is a manifestation of the principle that the civilian population must be spared as much as possible from the effects of hostilities.
During occupation, the Fourth Geneva Convention prohibits individual or mass forcible transfers, both within the occupied territory and beyond its borders, either into the territory of the occupying power or, as is more often the case in practice, into third states.
There is a limited exception to this rule, which permits an occupying power to “evacuate” the inhabitants of a particular area if this is necessary for the security of the civilian population or for imperative military reasons. Even in such cases the evacuations should not involve the displacement of civilians outside the occupied territory unless this is impossible for material reasons. Moreover, displaced persons must be transferred back to their homes as soon as the hostilities in the area in question have ceased.
The prohibition on displacing the civilian population for reasons related to the conflict unless the security of the civilians or imperative military reasons so demand also applies in non-international armed conflicts.
In addition to these express prohibitions, the rules of international humanitarian law which shield civilians from the effects of hostilities also play on important role in the prevention of displacement, as it is often violations of these rules which are at the root of displacements in situations of armed conflict.
Of particular relevance are:
- The prohibition to attack civilians and civilian property and of indiscriminate attacks;
- The duty to take precautions in attack to spare the civilian population;
- The prohibition of starvation of the civilian population as a method of warfare and of the destruction of objects indispensable to its survival; and
- The prohibition on reprisals against the civilian population and its property.
Also of relevance are the prohibition on collective punishments which, in practice have often taken form of destruction of homes, leading to displacement; and the rules requiring parties to a conflict, as well as all other states, to allow the unhindered passage of relief supplies and assistance necessary for the survival of the civilian population.
Although prohibited by international humanitarian law, displacement of civilians frequently occurs in practice. Once displaced or evacuated civilians are entitled to various protections and rights. Thus we find rules regulating the manner in which evacuations must be effected: transfers must be carried out are in satisfactory conditions of hygiene, health, safety and nutrition; during displacement persons must be provided with appropriate accommodation and members of the same family must not be separated.
Although these provisions relate to conditions to be ensured on situations of evacuation – i.e. “lawful” displacements for the safety of the persons involved security or for imperative military necessity – these conditions should be applicable a fortiori in situations of unlawful displacement.
In addition to these special provisions relating specifically to persons who have been displaced, such persons are civilians and, as such, entitled, even during displacement, to the whole range of protection appertaining to civilians.
In addition to this general protection, international humanitarian law affords refugees further specific protection. In international armed conflicts refugees are covered by the rules applicable to aliens in the territory of a party to a conflict generally as well as by the safeguards relating specifically to refugees.
Refugees benefit from the protections afforded by the Fourth Geneva Convention to aliens in the territory of a party to a conflict, including:
- The entitlement to leave the territory in which they find themselves unless their departure would be contrary to the national interests of the state of asylum;
- The continued entitlement to basic protections and rights to which aliens had been entitled before the outbreak of hostilities;
- Guarantees with regards to mean of existence, if the measures of control applied to the aliens by the party to the conflict means that they are unable to support themselves.
While recognizing that the party to the conflict in whose control the aliens find themselves may, if its security makes this absolutely necessary, intern the aliens or place them in assigned residence, the Convention provides that these are the strictest measures of control to which aliens may be subjected.
Finally, the Fourth Convention also lays down limitations on the power of a belligerent to transfer aliens. Of particular relevance is the rule providing that a protected person may in no circumstances be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs; a very early expression of the principle of non refoulement.
In addition to the aforementioned rules for the benefit of all aliens in the territory of a party to a conflict, the Fourth Geneva Convention contains two further provisions expressly for the benefit of refugees. The first provides that refugees should not be treated as enemy aliens – and thus susceptible to the measures of control – solely on the basis of their nationality. This recognizes the fact refugees no longer have a link of allegiance with that state and are thus not automatically a potential threat to their host state.
The second specific provision deals with the precarious position in which refugees may find themselves if the state which they have fled occupies their state of asylum. In such circumstances, the refugees may only be arrested, prosecuted, convicted or deported from the occupied territory by the occupying power for offences committed after the outbreak of hostilities, or for offences unrelated to the conflict committed before the outbreak of hostilities which, according to the law of the now occupied state of asylum, would have justified extradition in time of peace. The objective of this provision is to ensure that refugees are not punished for acts – such as political offences – which may have been the cause of their departure from their state of nationality, or for the mere fact of having sought asylum.
All of this being said, who is a refugee for the purposes of international humanitarian law? Although the Fourth Geneva Convention expressly refers to refugees, it does not define this term. Instead, it focuses on their de facto lack of protection from any government.
The matter was developed in Additional Protocol I. This provides that persons who, before the beginning of hostilities, were considered refugees under the relevant international instruments accepted by the parties concerned or under the national legislation of the state of refuge or of residence are to be considered “protected persons” within the meaning of the Fourth Convention in all circumstances and without any adverse distinction.
Author- Pranshu Singh, Co-author- Neelabh Shanker are studying at Amity Law School.