AN ANALYSIS OF THE PROTECTION OF REFUGEES UNDER INTERNATIONAL HUMANITARIAN LAW
Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: Joannah Titus
- October 11, 2022
- 11:26 am
International humanitarian law is the law that seeks to protect in times of war. Its relation to refugee law is of significance, as it offers protection to Refugees which is part of what humanitarian law seeks to promote.
International humanitarian law aims to prevent people from becoming refugees or internally displaced persons in the first place but most times, the intricacies associated with armed conflicts such as violations of the rules of war, human rights and humanitarian law in general; the displacement of persons becomes inevitable.
Refugee law is closely associated with international humanitarian law. Their point of convergence is that they seek the protection of persons in a state, even when not nationals of those states. Humanitarian law provides for certain protections to be accorded to hors de combat[1] [1] and persons with the ‘prisoners of war’ status. This is similar to the goal of Refugee law that protects individuals who have fled war or prosecution from another state to seek refuge.
In this article, we shall examine the concept of a Refugee and the protection provided to them under international law, as well as the relationship between refugee law and International Humanitarian Law.
WHO IS A REFUGEE?
The United Nations High Commissioners for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status states that “a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition”.
By the provision of Article 1 of the Refugee Convention 1951, the status of a Refugee applies to a person who as a result of events occurring before 1 January, 1951, and owing to a well-founded fear of persecution 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. In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
Therefore, a refugee is a person who seeks asylum in a nation while escaping potential hostilities, violence, or persecution at the hands of another state. Not every person escaping an armed conflict meets the requirements for refugee status as outlined in the 1951 Convention on the Status of Refugees. A fear of persecution based on “race, religion, nationality, or membership in an association” does not give rise to every violent conflict. The term has been enlarged to encompass those escaping armed conflict with the development of several regional refugee protocols, such as the 1969 Organization of African Unity (OAU) Refugee Convention and the 1984 Cartagena Declaration on Refugees[2] [2].
It is also worthy of note that the scope of protection provided to people generally, has been significantly enlarged by human rights principles since the 1951 Convention’s preamble. Furthermore, the Convention is built on human rights principles that are enhanced by humanitarian aspirations. In fact, the preamble of the Convention Relating to the Status of Refugees reinforces the idea stated in the United Nations Charter, that human beings shall enjoy fundamental freedoms and rights devoid of discrimination.
THE CONVERGENCE OF REFUGEE LAW AND IHL
In analyzing the convergence of refugee law and international humanitarian law, both laws were timely inventions to address the protection of persons in the territory of a state in which they were not nationals[3] [1]. These branches of international law seek to protect individuals, which also aligns with human rights law that provides the fundamental protection of persons of their various rights. International Humanitarian Law protects generally civilians during times of war. It is no doubt that during times of war, various destructions are made to civilian properties which causes them to flee their home. In instances where the root of such conflicts is ethnic-related or based on membership in social groups, they form part of the criteria provided under the 1951 Convention, which qualifies those persons fleeing war to obtain the status of a refugee.
Another important crossing point between International Humanitarian Law and Refugee law is one that concerns exclusions. Certain disregard to International Humanitarian Law is designated as a war crime, and perpetrators of such crimes may exclude such individuals from the protection to which ordinarily they may be entitled as refugees[4] [2].
Conclusively, the benefits and drawbacks of having a field-based protection and relief agency are a common theme in both Refugee law and International Humanitarian Law. The International Committee of the Red Cross’s expertise may benefit the United Nations High Commissioner for Refugee’s practice in some areas, but improved techniques for observing and implementing treaties would be beneficial for both streams of law[5] [3].
THE PROTECTION OF REFUGEES UNDER INTERNATIONAL HUMANITARIAN LAW.
The necessity of International refugee protection has not lost its relevance. The issue of forced displacement is still an issue today, as many states and communities are still involved in conflicts which have erupted and deliberately targeted civilians, as well as civilian objects. International humanitarian law affords protection to refugees who form the civilian population in a state, as long as they are not taking active part in hostilities. The fourth Geneva Convention during occupation, prohibits forcible transfers of civilians, though an occupying power is permitted to evacuate inhabitants of a particular area for security reasons. This protection extends to situations of non-international armed conflicts too.
During the time of evacuation of civilians, when necessary, certain protection such as basic hygiene, safety and nutrition, etc. are to be accorded to civilians, refugees included.
These protections also fall under the purview of the principle of humanity and precaution in International Humanitarian Law, which allows the civilian population to be spared as much as possible from the effects of hostilities.
Refugees also enjoy special protection under International Humanitarian Law, as they 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[6] [4]. The rules applicable to aliens include but are not limited to the continued entitlement to basic protections and rights, which aliens had before the outburst of hostilities, and the right to leave the territory in which they are present, except such departure will conflict with the national interest of the state. The principle of non-refoulement is another protection safeguarding the interest of refugees. The principle provides that a protected person may in no circumstance be relocated, or forcefully transferred to a place, where such an individual may have reason to fear persecution for religious or political reasons.
Refugees are not to be treated as enemy aliens and as such, International Humanitarian Law identifies that these individuals do not have allegiance with that state, and are thus, not regarded as potential threats to their host state.
CONCLUSION
It is becoming increasingly obvious in modern international legal thought that no international legal system can be viewed in isolation. It is evident that in some cases, safeguards provided by International Humanitarian Law are either superior or additional to those provided by International Refugee Law.
It is crucial to note that, with respect to human rights law, there is no reason why Refugee law and International Humanitarian Law should not coexist, even though this development was not necessarily discussed in this article.
[1] This refer to persons who in the power of an adverse party is no longer taking active part in hostilities during armed conflicts.
[2] Volker Turk and Frances Nicholson, ‘Refugee Protection in International law: An overall perspective’, UNCHR.Org. Available at < https://www.unhcr.org/419c73174.html [5] > accessed on 16th September, 2022.
[3] Rachel Brett and Eve Lester, ‘Refugee law and international humanitarian law: parallels, lessons and looking ahead, A non-governmental organization’s view’ IRRC SEPTEMBER 2001 VOL.83 @ pg 713. Available at < https://international-review.icrc.org/sites/default/files/S1560775500119273a.pdf [6]> accessed on 18th September, 2022.
[4] ICRC, ‘Humanitarian Law, Human Rights and Refugee Law – Three Pillars’. Statement at the International Association of Refugee Law Judges world conference. Stockholm, 21-23 April 2005, by Emanuela-Chiara Gillard, ICRC Legal Adviser. Available at < https://www.icrc.org/en/doc/resources/documents/statement/6t7g86.htm [7]> accessed on 16th September, 2022.
[5] Ibid, n. 2
[6] Ibid, n. 7