Displacement is often seen as part and parcel of armed conflict and many refugees leave their homeland due to war.1Karen Hulme, ‘Armed Conflict and the Displaced’ (2005) 17 Int’l J Refugee L 91 Civilians suffer due to the violence inflicted during the course of a war and whether they are directly targeted or not, we often see widespread fleeing from the theatre of hostilities as a result.2‘Humanitarian Evacuations in Violence and Armed Conflict’ (2018) 30 Int’l J Refugee L 355 Refugees and armed conflict are therefore intricately connected. An armed conflict can create refugees, refugees can find themselves caught up in an armed conflict, and they can even contribute to an armed conflict as refugee camps become militarised. There are specific international legal regimes which apply to armed conflict (international humanitarian law) and refugees (international refugee law), however very few provisions apply to refugees in an armed conflict. Moreover, these two regimes say little about each other and while they sometimes intersect significantly, they are usually seen to apply in distinct spheres.
This month at the Diplomacy Law and Policy Forum, we will be looking at refugees and armed conflict, at the ways in which the two regimes intersect, particularly through the rejection of refugee status to war criminals, as well as how refugees can be created due to armed conflict. The articles for this theme will also look at the difficulties in the application of these two regimes, definitionally as well as in practical terms, highlighting the fact that more needs to be done to safeguard the very specific ways in which refugees need protection during an armed conflict.
Scope of Application
International refugee law is a set of rules and norms which protect those seeking asylum from persecution, providing a ‘surrogate’ protection for them as their state of nationality has failed to meet its responsibilities.3G Goodwin-Gill and J McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2008) Chapter 1 The main sources of international refugee law are the 1951 Convention41951 Convention relating to the Status of Refugees: 189 UNTS 137 and the 1967 Protocol.51967 Protocol relating to the Status of Refugees: 606 UNTS 267 Protection is given under these treaties to those who fulfil the following criteria:
- Outside his/her home country
- A “well-founded fear” of persecution
- On the basis of his/her race, religion, nationality, membership in a social group or political opinion
- Cannot be reasonably expected to return to his/her country
Therefore, an individual who has a well-founded fear of persecution falling within the prescribed categories who cannot be expected to return to their home country must cross an international border and seek asylum at a country which has ratified either the 1951 Convention or 1967 Protocol to avail the protection of refugee law. Those arriving at the borders of a state who have not ratified these agreements are still entitled to seek asylum as per Article 14 of the Universal Declaration of Human Rights 1948, but are not entitled to be granted that asylum.6UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) Moreover, they are also protected by the customary obligation of non-refoulement in international human rights law.
The law of armed conflict, by contrast, applies during an armed conflict (whether this is international or non-international) and aims to protect those not directly participating in hostilities from the effects of war. The Geneva Conventions, their Additional Protocols and customary IHL are the sources of this regime of law and apply to all those who find themselves within an armed conflict, whether they be civilians or combatants. Refugees may be either of these, civilian or combatant, and IHL does include provisions which protect them.
Refugees under IHL
IHL governs situations in which foreigners who may be refugees find themselves in territory where an armed conflict breaks out. These foreigners may be nationals of an enemy, allied, or neutral country and find themselves in a vulnerable situation during an armed conflict. Ordinarily, a state would either expel or detain enemy aliens.7Yoram Dinstein, ‘Refugees and the Law of Armed Conflict’ (1982) 12 Isr YB Hum Rts 94 However, Article 44 of the Fourth Geneva Convention 1949 states that “In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government”. This provision was adopted due to the flight of refugees, mostly Jewish, during the Second World War to countries such as the UK.8ibid. When war broke out, some of them were interned as enemy aliens. This led to the need for this provision and to demarcate the difference, as Dinstein puts it, between “real enemy aliens” and “friendly aliens who are technically enemies”.9ibid. However, Article 44 also allows for refugees to be interned if their activities represent a danger to the security of the state of refuge, thus allowing a balance between humanitarian considerations and states’ interests.
Similarly, in case of an occupation, Article 70 of the Fourth Geneva Convention states that “Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory, except for offences committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time of peace”. The Occupying Power is to respect the right to asylum granted to refugees in the Occupying territory. However, if refugees commit treasonable actions against their country of origin after the war starts, they may be deported. Similarly, if they have committed an extraditable offence prior to the conflict starting, they may also be deported.10ibid. They would still be afforded the fundamental guarantees under Article 75 of Additional Protocol I which prohibits any violence to life, health or physical or mental well-being. Moreover, Article 73 of the Protocol also states that refugees accepted by the occupied state prior to the occupation are to be protected persons and thus given the comprehensive protection accorded to that status under the Fourth Geneva Convention.
Another issue which arises is that of refugees wishing to serve in the armed forces of their host state against their state of nationality. If they do so, they would be regarded as unlawful combatants, and may be put on trial for treason by their state of nationality.11ibid. Prisoners of War may also become refugees – as in combatants fighting for their home state who fall into the hands of the enemy and when it is time for them to return, choose to seek asylum in their host country.12ibid. This is particularly an issue with deserters who may be punished if returned home or for those wishing to not return due to political or ideological reasons. Article 118 of the Third Geneva Convention obliges prisoners of war to be released and repatriated without delay after the cessation of hostilities. During negotiations of this provision, it was proposed that PoWs should not be returned if they so desire, but this was rejected in a vote as it may allow the belligerent detaining state to keep PoWs on the basis that they do not wish to be repatriated.13ibid. Dinstein discusses the fact that following the end of the Korean war, many North Korean and Chinese PoWs did not want to go back to their countries.14ibid. A special agreement had to be made in which these PoWs were administered by a commission which assisted PoWs who did not wish to return home to other destinations.15ibid.
The Geneva Conventions also foresaw that states might want to set up specific zones for the protection of civilians, these were called ‘safe zones’ and they were intended to protect certain vulnerable groups from the effects of conflict.16Karen Hulme, ‘Armed Conflict and the Displaced’ (2005) 17 Int’l J Refugee L 91 Articles 14 and 15 allows for hospital, safety and neutralised zones, and Articles 59 and 60 of Additional Protocol I allow for non-defended localities and demilitarised zones. While these have not been used frequently by states, where they were used there have been mixed results. In some instances, such as Srebrenica, these zones actually served to increase violence against civilians as they were deliberately targeted.17ibid. Furthermore, refugee-hosting states have used safe zones as a means to close their borders when faced with mass refugee influxes.18K. Long, ‘In Search of Sanctuary: Border Closures, ‘Safe’ Zones and Refugee Protection’, Journal of Refugee Studies, vol 3, (2013), pp. 458–476 These zones are coercive and may conflict with an individual’s right to seek asylum elsewhere and in effect do not guarantee safety at all.19ibid. While not a challenge found theoretically within IHL provisions, this is an unfortunate way in which states have chosen to apply IHL which is not in line with their IRL obligations.
Armed Conflict under IRL
Armed conflicts are not specifically mentioned in the definition of a refugee. While most refugees fleeing an armed conflict would usually fulfil the criteria in the 1951 Refugee Convention, persecution is based on the five categories mentioned. However, regional instruments have expanded their definitions of a refugee to include those induced by conflict, namely the 1984 Cartagena Declaration on Refugees201984 Cartagena Declaration on Refugees; OAS/Ser.L/V/II.66, doc.10, rev.1 and the African Refugee Convention.211969 Convention on the Specific Aspects of Refugee Problems in Africa: 1000 UNTS 46 The latter adds to the 1951 Convention definition; “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 the 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”.22ibid. This is significant because refugees often flee not only from deliberate acts of persecution but also serious forms of generalised, and non-deliberate danger.23G. J. L. Coles, ‘Some Reflections on the Protection of Refugees from Armed Conflict Situations’ (1984) 7 In Defense of the Alien 78
Article 9 of the 1951 Convention allows for a contracting state to take provisional measures in relation to a refugee in time of war or other exceptional circumstances. However, the most significant provision indicating an intersection between the two regimes is Article 1F of the 1951 Convention. This provision excludes certain groups from availing refugee status even if they fulfil the criteria in the definition, i.e. those who have committed a crime against peace, a war crime, or a crime against humanity, as defined in international instruments. These exclusion clauses are to ensure that serious criminals would not be able to evade prosecution and punishment for their crimes by seeking asylum.24The Law of Refugee Status, James C. Hathaway and Michelle Foster, Cambridge, 2014, Chapter 7 Drafters also believed that if States had to admit serious criminals as refugees, they would not be willing to be bound by the Convention. The burden is on the State to show that there are ‘serious reasons for considering’ that one of the acts described has been committed.25ibid.
War crimes are grave breaches of international humanitarian law which give rise to individual responsibility under international law. While there is no conclusive list of violations that constitute war crimes, Article 8(2) of the Rome Statute is helpful as more or less a conclusive list and includes both war crimes conducted in international and non-international armed conflicts. The UN High Commissioner for Refugees (UNHCR) has issued a Guidance Note On Maintaining The Civilian And Humanitarian Character Of Asylum (2018) which aims to prepare for and respond to situations in which the civilian and humanitarian character of asylum is compromised or at risk of being compromised.26UN High Commissioner for Refugees (UNHCR), Guidance Note on Maintaining the Civilian and Humanitarian Character of Asylum, December 2018 This occurs when fighters and combatants mix in with, or stay in close proximity to, refugee populations and their presence exacerbates the vulnerability of these populations and exposes them to violence and insecurity.27ibid. UNHCR deems those combatants who have not fully laid down their arms to be inadmissible to the refugee process even before the issue of exclusion is assessed.28ibid.
Cases have come before domestic courts relating to refugees who have committed war crimes. For instance, in JS (Sri Lanka), JS was a member of the LTTE and had been involved in military operations against the Sri Lankan army.29R (on the application of JS) (Sri Lanka) (Respondent) v. Secretary of State for the Home Department (Appellant),  UKSC 15, United Kingdom: Supreme Court, 17 March 2010 After he learnt that his identity had been uncovered, he fled to the UK and claimed asylum. He was refused asylum on the basis that there were serious reasons for considering that he had committed war crimes. The UK Supreme Court, however, held that mere membership of the LTTE was not sufficient to establish that there were serious reasons for considering that he had committed a war crime.30ibid. The Supreme Court held that “one needs…to concentrate on the actual role played by the particular persons, taking all material aspects of that role into account so as to decide whether the required degree of participation is established” and this included the individual’s contribution towards the commission of war crimes”.31ibid. Much then hinges on them fulfilling modes of liability under international criminal law in deciding whether there are ‘serious reasons for considering’ that a refugee may have committed a war crime. The term ‘serious reasons’ is not in and of itself very clear.
Refugees who flee a state of armed conflict, particularly those waged on religious, ethnic, or ideological grounds, are particularly vulnerable. IHL acknowledges the peculiar nature of their position and includes provisions which accommodate the lack of protection bestowed to them by their state of nationality. However, states have also chosen to exploit IHL provisions which allow for safe zones for civilians in order to create a buffer to shirk their obligations to refugees which reach their borders. Similarly, IRL does not adequately account in its definition for the generalised persecution which may result from an armed conflict which would cause individuals to flee. Moreover, while the desire to exclude those who have committed war crimes is understandable, exclusion on the basis of there being ‘serious reasons’ for considering this may be too exclusionary. As a result, there is a need for greater intersection between these two areas of law, perhaps through soft law or policy documents, which take into account the vulnerable position faced by individuals who flee their homeland due to an armed conflict.