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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