Monday 1 October 2012

International Humanitarian Law - Refugees


Introduction
Ever since the two World Wars, refugees have been victims of discrimination and continuous displacement. They have been ill-treated, murdered, enslaved, and sexually exploited. In view to ameliorate their precarious condition, the Geneva Convention IV 1949 and its two Additional Protocols I and II 1977 were drafted and ratified by the international community. In 1951, the United Nations Convention Relating to the Status of Refugees was adopted by the UN General Assembly, to enhance protection given to refugees and in 1969, the Convention Governing the Specific Aspects of Refugee Problems in Africa, a regional treaty, was adopted by the Organisation for African Unity to better cope with refugees in Africa. Under international law, refugees are now a class of persons benefitting from special protection in times of international armed conflicts.

1.    Who are Refugees?
As defined in Article 1(2) of the 1951 UN Convention, a refugee is a person who:

“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group[1] or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country or return there because there is a fear of persecution[2]..."

Persons claiming the status of refugee or asylum seeker in a country other than their homeland have to establish one of the five grounds set out in Article 1(2), i.e. persecution on the ground of race, religion, nationality, membership of a particular group or political opinion. If refugee status or asylum is not established on one of the five grounds, the persons can be summarily deported back to their country of origin by the receiving State.
The 1969 OAU Convention accepted the definition of the 1951 UN Convention and expanded it to include people who were compelled to leave their country not only as a result of persecution but also owing to: external aggression, occupation, foreign domination or events seriously disturbing public order. It provides that:

“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.”

This definition is wider than the one found in the 1951 UN Refugee Convention and adapts the definition to the reality of the developing world. The African Union's definition also recognizes non-state groups[3] as perpetrators of persecution and it does not demand that a refugee shows a direct link between herself or himself and the future danger. It is sufficient that the refugee considers the harm imminent to force him/her to abandon their home.

Refugees must be distinguished from Internally Displaced Persons (IDPs). IDPs are persons who are fleeing within their own country as a result of armed conflicts or civil wars but who have not crossed an international border and do not enjoy refugee status whereas refugees are persons fleeing from one state to another[4] in times of international armed conflicts because of the fear of persecution. However, both refugees and IDPs are civilians and should be protected especially in times of conflicts.

2.    Protection of Refugees under IHL
First, there is the ‘principe de non refoulement’ that prohibits the forced return of a refugee and is one of the most fundamental principles in international refugee law. This principle is laid out in Article 33 of the 1951 UN Convention, which states that:

 “No state shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

This principle is also found in Article 45 of the Geneva Convention IV 1949[5] and is applicable only in conflicts of an international character. It provides that:

“In no circumstances shall be a protected person be transferred to a country where he or she may have reason to fear persecution…”

In the case of American Baptist Churches v. Edwin Meese III, as Attorney General of the US, two individuals Doe and Perez claimed that all Guatemalan and Salvadoran aliens are entitled to a temporary haven in the US due to internal armed conflicts and human rights violations in their homeland. Protection was claimed under Article 45 of the Geneva Convention IV 1949. Since it was an internal armed conflict, the Court held that:

“Because the conflicts in El Salvador and Guatemala are not international armed conflicts, Article 45 of the Geneva Convention did not apply to provide any temporary refuge in the USA…”

Thus, if there is no international armed conflict between states, neither Common Article 3 which prevents the displacement of population nor Article 45 will apply. Article 47 of the Geneva Convention IV allows only temporary displacement of civilians and protected persons cannot be deported unless they are prohibited persons. It provides that:

“Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”

In the case of Rev. Monteiro v. The State of Goa, the appellant was a resident of Goa. After the annexation of Goa to India, he had the choice of becoming an Indian national or retaining Portuguese nationality. He chose to retain his Portuguese nationality and was given a temporary residence permit that had to be extended. As he made no request after the extension period he was asked to leave India. He disobeyed and was prosecuted. His defence was that he was protected under the Geneva Convention IV and that the decision to prosecute him was ultra vires and he committed no offence. The argument raised by the State of Goa was that the Geneva Convention ceased to apply after Goa became part of India and that Municipal Courts could not give him any redress. The Court held that:

“The occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest and subjugation. It must be remembered that Mr. Gardner concedes that the annexation was lawful. Therefore, since occupation in the sense used in Art. 47 had ceased, the protection must cease also. We are, therefore, of opinion that in the present case there was no breach of the Geneva Conventions.”


Conclusion
Since decades refugees have been ill-treated and abused, with no protection. However, nowadays there are modern mechanisms that have been set up and originating from the Geneva Conventions of 1949 which is the foundation of International Humanitarian Law. Refugees form a class of protected persons and are given assistance by international organisations during armed conflicts that have international ramifications. A recent example is that of the series of civil wars and armed conflicts in countries like Libya, Tunisia, Ivory Coast, Somalia and Egypt which has caused the displacement of millions of civilians into refugee camps in neighboring States. Fortunately, the United Nations High Commissioner for Refugees has intervened promptly to alleviate the misery of thousands of refugees by providing shelter, food and protection. Nevertheless, one of the greatest critics of the International Refugee Law remains that, almost all international treaties have a mechanism to monitor its implementation but neither the 1951 UN Refugee Convention nor the 1969 OAU Convention have such a body that monitors state obligations and commitments towards refugees and IDPs.



[1] Abankwah v. INS 1999 38 ILM 1267, where the US Court of Appeal was satisfied that women belonging to a particular social group would have to undergo female genital mutilation.

K v. Secretary of State for the Home Department [2007] HL, for the meaning of a particular social group. Available from: http://www.ipsofactoj.com/international/2007/Part10/int2007%2810%29-002.htm

[2] Sepet v Secretary of State for the Home Department [2003] HL, where two Turkish nationals of Kurdish origin, should have been granted asylum on the ground that they were refugees within the meaning of article 1A(2) of the 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol to that Convention. The ground upon which asylum was claimed related to their liability, if returned to Turkey, to perform compulsory military service on pain of imprisonment if they refused.


[3] Ex: Terrorists, Guerillas.

[4] Articles 36-46 Geneva Convention IV 1949.

[5] Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949)

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