University of Amsterdam
“The problem of civilians fleeing armed conflict: are the provisions of the
international refugee regime sufficiently able to protect them? And, can the
humanitarian laws of armed conflict be used to improve and clarify their
entitlement to protection?”
An analysis of whether war refugees are effectively included in the international protection regime (as contained in the 1951 Refugee Convention and its 1967 protocol and other forms of complementary protection); and the role that international humanitarian law may be able to play
in resolving any protection issues.
Faculty: International and European Law, Public International Law (LLM) Author: Ms Prachiti Venkatraman
Supervisor: Dr. M. (Maarten) den Heijer Submitted: 29th July 2016
Abstract
Many persons who have forcibly been displaced from their homes and countries seek asylum and protection as refugees. In fact, the majority of modern refugee movements are attributable to the flight of war victims. In seeking refugee status, war victims are governed by the provisions of international refugee law, particularly as codified in article 1(A)2 of the United Nations’ (UN) 1951 Convention and 1967 Protocol Relating to the Status of Refugees (the 51 Convention and the 67 Protocol). Under this provision, the emphasis is on the particular type of persecution that caused the individual to flee. In short, a person receives refugee status based on their individual circumstances, on the extent to which the persecution (for a Convention reason) was directed at them. This definition ensures that refugee status is determined by either individual or group persecution and so a wide variety of persons may be deemed refugees. Yet, despite the technically wide ambit of the article 1(A)(2) definition it is difficult to reconcile to the situation of persons fleeing armed conflict in light of the widespread and indiscriminate violence that they are fleeing. The persecution criteria as defined in refugee law can have a discriminatory effect by excluding persons who would be refugees in every other sense of the concept.
International protection does extend beyond the provisions of the 51 Convention and 67 Protocol. Other forms of complementary protection might be available, based on the harm that would be caused by a return to war-torn territory rather than considerations of persecution. However, such complementary protection is not necessarily equivalent to that offered by refugee status under the 51 Convention. Consequently, such potential discrepancy may be to the disadvantage of the war victim, who would receive a lesser degree of protection. It does not close the protection gaps of the 51 Convention regime.
There thus a gap in the international refugee protection regime, in the case of civilian war refugees. International Humanitarian Law (IHL) can be key here. As a set of laws pertaining to warfare, humanitarian law defines the circumstances of war victims. It is defines what an armed conflict is and what it entails and how activities against civilians might label them as specifically-persecuted persons. The ability of humanitarian law to define the context of an armed conflict could be used to close the protection gap towards civilian war refugees; using IHL determinations as an interpretive tool in implementing the refugee criteria of the 51 Convention.
Table of Contents
Chapter 1 Introduction pg 4 Chapter 2 Research Methodology pg 10 Chapter 3International Refugee Law and War Refugees: The 1951 UN Convention, its 1967 Protocol and the UNHCR
pg 12
Chapter 4
Complementary Protection: A Solution to the Issues faced by Victims of War under the 1951 Convention?
pg 20
Chapter 5
A Role for International Humanitarian Law pg 29 Chapter 6 Conclusion pg 42 Bibliography pg 45
Chapter 1- Introduction
“They bore within their breasts the grief That fame can never heal . . .
The deep unutterable woe Which none save exiles feel.”
--W. E. Aytoun, The Island of the Scots 1
Over the course of history, as warfare moved beyond designated battlefields and into civilian territory, the plight of individuals caught in the crossfire between warring entities became paramount. Recently, this has gained particular importance in light of the volatile situation in the Middle East and in North Africa. In fact, the number of territories worldwide that are plagued by 2
violence and conflict is considerable. Recent statistics show that over 12 million people have 3
fled from these territories, to escape a situation of violence that is rampant and widespread. In 4
contexts ranging from the Syrian conflict, the Libyan civil war, armed activities against the Islamic State group, to civil unrest in Yemen, millions of civilians are being displaced from their homes. As is being widely reported in the news media, their daily lives are subject to violence and armed activities carried out by military organs of states and belligerent non-state groups. Large numbers of people are leaving the territory in search of protection from such armed
F Bugnion, 'Refugees, Internally Displaced Persons, And International Humanitarian Law' [2004-2005] 28(5) 1
Fordham International Law Journal 1397
Council on Foreign Relations, 'Global Conflict Tracker' (CFR, 2016) <http://www.cfr.org/global/global-conflict-2
tracker/p32137#!/> accessed 28 May 2016.
International Institute for Strategic Studies, ’Armed Conflict Database' (IISS, 2016) <https://acd.iiss.org/> accessed 3
27 May 2016. ibid. 4
conflict. The debate surrounding the status of people fleeing armed conflict, as refugees who are 5
owed international protection, has become crucially important.
In layman’s terms, a refugee is “a person who has been forced to leave their country in order to escape war, persecution, or natural disaster.” Thus, on the face of it, victims of war who have 6
left their country of origin to flee widespread armed conflict must be seen as refugees. From the perspective of an ordinary person, they must be recognised and protected accordingly. However, this definition in ordinary language does not reflect the political and legal realities that victims of war, who are seeking protection outside their former country, find themselves in. In reality, any protection afforded by international law is based on legal identity and the complex circumstances of civilians fleeing warfare (as discussed over the course of this dissertation) confuses their legal standing as such. There is a strong need to clarify the legal position and rights of persons affected by armed conflict. This research thesis hopes to make a contribution towards this much-needed, important development.
Many persons who have forcibly been displaced from their homes and countries seek asylum and protection as refugees. In fact, the majority of modern refugee movements are attributable to the flight of war victims. In seeking refugee status, war victims are governed by the provisions of 7
international refugee law, particularly as codified in the United Nations’ (UN) 1951 Convention and temporally extended by the 1967 Protocol Relating to the Status of Refugees (the 51 Convention and the 67 Protocol). As civilians fleeing the indiscriminate effects of armed 8
conflict, the recognition of these persons as refugees is primarily defined by the aforementioned UN documents, particularly the definition of a refugee as contained in article 1(A)(2) of the 51 Convention. Under this article, a refugee is one who “owing to well-founded fear of being
'In Depth: Middle East' (World Affairs Journal, 2016)
<http://www.worldaffairsjournal.org/world-news/region/middle-5
east> accessed 10 June 2016.
'Definition Of Refugee' (Oxford Dictionaries, 2016) <http://www.oxforddictionaries.com/definition/english/refugee>
6
accessed 9 June 2016.
E Guild, Security and Migration in the 21st Century (Polity Press 2009) 84-86
7
A Zimmermann and others, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A
8
persecuted 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.” 9
Under this provision, the emphasis is on the particular type of persecution that caused the individual to flee. In short, a person receives refugee status based on their individual 10
circumstances, on the extent to which the persecution (for a Convention reason) was directed at them. This definition ensures that refugee status is determined by either individual or group persecution and so a wide variety of persons may be deemed refugees. Yet, despite the technically wide ambit of the article 1(A)(2) definition it is difficult to reconcile to the situation of persons fleeing armed conflict in light of the widespread and indiscriminate violence that they are fleeing. Pointed persecution is a difficult to show here. The persecution criteria as defined in refugee law can have a discriminatory effect by excluding persons who would be refugees in every other sense of the concept. 11
International protection does extend beyond the provisions of the 51 Convention and 67 Protocol. Other forms of complementary protection might be available, based on the harm that would be caused by a return to war-torn territory rather than considerations of persecution. However, such complementary protection is not necessarily equivalent to that offered by refugee status under the 51 Convention. Consequently, the potential discrepancy may be to the 12
disadvantage of war victims, who would receive a lesser degree of protection. As such, complementary protective status is not an equal alternative to refugee status under the 51
‘The 1951 Refugee Convention' (UNHCR, 2016) <http://www.unhcr.org/1951-refugee-convention.html> accessed 10
9
June 2016. (1951 Convention)
M Kagan and JP William, 'Persecution in the Fog of War: The House of Lords' Decision in Adan' [2001-2002] 23(2)
10
Michigan Journal of International Law 247
Vanessa Holzer, Refugees from armed conflict : the 1951 Refugee Convention and international humanitarian law
11
(1st ed, Intersentia Ltd 2015)
J McAdam, Complementary Protection in International Refugee Law (OUP 2012)
Convention. Viewed in this manner, complementary protection does not bring a victim of war entirely within the fold of mainstream refugee protection. It does not close the protection gaps of the 51 Convention regime.
There thus a gap in the international refugee protection regime, in the case of civilian war refugees. International Humanitarian Law (IHL) can be key here. As a set of laws pertaining to warfare, humanitarian law defines the circumstances of war victims. It defines what an armed conflict is and what it entails and how activities against civilians might label them as specifically-persecuted persons. The ability of international humanitarian law to define the context of an armed conflict could be used to close the protection gap for civilian war refugees. 13
In this manner, IHL would serve as an interpretive guide, providing the context of war victims to which the refugee criteria could be applied. Organisations like the United Nations High Commissioner for Refugees (the UNHCR) have accounted for an interpretive role for IHL, without elaborating much on it. This thesis hopes to engage in a detailed analysis of how an 14
IHL-driven interpretation might function in practice. The rationale for this approach is based on the fact that refugee status, particularly as recognised under the 51 Convention, is the key form of international protection. Ensuring the effectiveness of this regime is crucial for the success 15
of international protection. By using IHL to improve the implementation of refugee law, this thesis hopes to make a contribution to the improved effectiveness of international protection.
Beyond gap-filling, greater synergy between the humanitarian and refugee branches of international law increases the coherence of this field. The Vienna Convention on the Law of Treaties (VCLT) codifies the principle of the integrity of international law. It promotes
Holzer (n11) 13
UNHCR, 'Summary Conclusions On International Protection Of Persons Fleeing Armed Conflict And Other
14
Situations Of Violence' (Refworld, 2012) <http://www.refworld.org/docid/50d32e5e2.html> accessed 8 June 2016. (UNHCR Summary Conclusions)
UNHCR ‘Draft Guidelines on International Protection- Claims to refugee status related to situations of armed violence and conflict under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions’ (Geneva 2016) (UNHCR Draft Guidelines)
Holzer (n11) 165
15
discipline interaction between the various branches of international law on matters of common concern. The UN Secretary-General has stated that compliance with international humanitarian 16
law, human rights law, refugee law, and international criminal law by all parties concerned provides the strongest basis for ensuring respect for the safety of the civilian population in armed conflicts. Thus, it is authoritatively recognised that the various branches of international law, 17
including humanitarian and refugee law, are interconnected and the legal dilemma to be solved is how and to what extent are these branches to interact. Overall, these two lex specialis of international law can be developed to complement each other and this research thesis seeks to make a contribution to that end.
These basic arguments will be further developed in the remainder of this dissertation. Before moving on to a substantive discussion of law, the next chapter will briefly discuss the research objectives and methodology that framed this thesis. Chapter 3 will analyse the application of the core documents of international refugee law- the 51 Convention and 67 Protocol- in determining protection for war victims. The analysis of these legal documents will be complemented by a study of the actions of their institutional supervisor, the United Nations High Commissioner for Refugees (the UNHCR). Chapter 4 will explore some key forms of complementary protection. 18
As important developments in complementary protection have arisen through regional instruments, this chapter will analyse the application of the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, the 1984 Cartagena Declaration on Refugees for Latin America, and subsidiary protection as codified in European Union (EU) law to war refugees. The emphasis on these instruments is motivated by the research conducted for this thesis project. The bulk of the academic and legal texts consulted viewed these three regional approaches as crucial. Chapter 5 will analyse the provisions of humanitarian law with a view to understanding the legal situation from which war refugees arise.
V Moreno-lax, 'Systematising Systemic Integration: ‘War Refugees’, Regime Relations, and a Proposal for a 16
Cumulative Approach to International Commitments ' [2014] 12 Journal of International Criminal Justice 907
Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict (UN Doc. S/ 17
2005/740 of 28 November 2005), para 12.
G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed, OUP 2007)
The chapter will elucidate the connection between jus in bello and jus as bellum concepts (typically used to distinguish humanitarian and refugee law) and address concerns raised by 19
international jurisprudence that view humanitarian law as unconnected to refugee law. Chapter 6 will conclude the thesis. It will provide an overview of the main arguments and findings of this research project and reconcile these with the objectives of the thesis.
D Fleck, The Handbook of International Humanitarian Law (Kindle ed, OUP 2013) 19
Chapter 2- Research Methodology
Based on the underlying rationale for this research project and the nature of the gaps identified in the current regime of international law, the following specific objectives were developed for this thesis-
-
To identify and analyse the extent to which civilians fleeing armed conflict are protected by international refugee law-
To identify the relevant norms of complementary protection that are applicable to the situation of civilians fleeing armed conflict-
To analyse whether complementary protection sufficiently removes the protection gaps in the key international law provisions.-
To identify the humanitarian law concepts and definitions that pertain to how victims of war and their circumstances are identified-
To clarify the status of civilian victims of war, that cross international borders, as persons who are due protection under the international refugee regime by using humanitarian law definitions to inform refugee law-
To contribute to the reduction of the gap between the legal and ordinary definitions of a refugee-
To contribute to the development of legal certainty for the position of victims of war seeking asylum and refuge-
To contribute to the development and strengthening of international law by using humanitarian law concepts to close protection gaps in refugee law and therefore also highlight the cross-discipline value of humanitarian legal conceptsIn order to achieve these objectives, this research thesis will be of a critical and normative nature. In conducting this research, a variety of sources were consulted. Official codifications of international law, their commentaries and preparatory documents and the conclusions of international conferences were the key normative sources. For further critical perspectives,
academic books, articles and web resources were used. The scope of this research project is limited to civilians as the provisions of the 51 Convention, etc are clearly predicated on the civilian status of refugees. Moreover, as this dissertation emphasises the scope of legal 20
protection, an analysis of the nature of such protection as permanent or temporary is beyond its feasibility. Finally, as war victims tend to flee in large numbers, the issues of mass influx/group 21
determination will be analysed as they arise in relation to the legal provisions discussed here.
GJL Coles, The Condition of Refugees from Situations of Armed Conflict and Serious Internal Disturbance. in F
20
Kalshoven (ed), Assisting the Victims of Armed Conflict and Other Disasters (Martinus Nijhoff Publishers 1989) 157 Coles (n20) 147-161
Chapter 3: International Refugee Law and War Refugees: The 1951 UN Convention, its 1967 Protocol
144 of the 190-plus nations of the world have signed the 51 Convention but the 67 Protocol is not so widely ratified. However, as the case of several Middle Eastern countries has shown, 22
states have been willing to respect the Protocol’s tenets without formal ratification. In view of 23
such widespread recognition (and therefore, potential customary legal status) these legal texts form the natural epicenter of the international (refugee) protection regime.
I. Overview: approaches to the 1951 Convention
The chief UN agency that is responsible for the implementation of the aforementioned Convention and Protocol and the protection of refugees internationally is the UNHCR. UNHCR’s official mandate covers statutory refugees (reflected in paragraph 6(A)(ii) of its 24
statute, that echoes the 1951 Convention) identified as individuals requiring protection from persecution, generalised violence or public disorder; or on the basis of prima facie group determination on account of persecution and/or the general risk of serious harm from generalised violence or other circumstances which have seriously disturbed public order”; 51 Convention refugees, etc. 25
1951 Convention (n9) 22
D Stevens, Shifting conceptions of refugee identity and protection: European and Middle Eastern approaches. in 23
Kneebone and others (eds), Refugee Protection and the Role of Law: Conflicting Identities (Routledge 2014) 73-97 'Statute Of The Office Of The United Nations High Commissioner For Refugees' (UNHCR, 1950) <http://
24
www.unhcr.org/protection/basic/3b66c39e1/statute-office-united-nations-high-commissioner-refugees.html> accessed 27 May 2016. (UNHCR Statute)
Volker Türk ‘UNHCR’s Role in Supervising International Protection Standards in the Context of its 25
Mandate’ (International Conference on Forced Displacement, Protection Standards, Supervision of the 1951 Convention and the 1967 Protocol and Other International Instruments; York University, Toronto, Canada; May 17– 20, 2010) 9,10
From the UNHCR’s mandate, it’s immediately obvious that it offers refugee protection to the victims of generalised and indiscriminate violence; a frequent characteristic of modern armed conflict. In the past, the UNHCR deemed it unlikely that a person fleeing armed conflict would 26
be a refugee. It has since amended its stance. However, it can be said that the damage was 27
already done and the notion of victims of wars as ineligible for refugee status established. The current approach towards victims of war, as discussed below, recognises them as refugees only in exceptional circumstances. Moreover, paragraph 8of the UNHCR’s statute lists the activities to be undertaken to achieve this mandate. The activities stipulated involve a considerable degree 28
of cooperation from state governments as they are ones who host refugees and provide territorial, sovereign, protection. This is not an issue so long as states agree with the UNHCR classification of persons as refugees. However, state practice has been oscillating and they have recognised war refugees to a mixed degree. This is because most states define refugees first and foremost under 29
the 51 Convention- the legal source of their responsibilities- before looking to the guidance of the UNHCR. 30
States have a strong role to play in interpreting the 51 Convention. Goodwin-Gill and McAdam highlight how the actual implementation of the Convention falls under the sovereign authority of the state, giving much discretion to the state. But state practice has been erratic and the lack of convergence in state practice and opinio juris precludes the development of a customary 31
refugee definition that includes victims of warfare. However, some basic principles that all states are obliged to follow may be distilled from the principles of humanity that underlie the Convention. Firstly the widest possible protection may be afforded through a liberal interpretation of the criteria stipulated in article 1(A)2, accounting for a potential number of
UNHCR Summary Conclusions (n14) 26 Holzer (n11) 1-22, 38 27 UNHCR statute (n24) 28 Holzer (n11) 1-22, 38 29
Goodwin-Gill and McAdam (n18) 34-37 30
M Shaw, International Law (7th ed, Cambridge 2014) 50-63 31
subjective and objective factors. An undue extension of the remit of the 51 Convention can be curtailed through strict management of exceptions. These principles follow the aims of the drafters of the 51 Convention. “The Conference, expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.” However, this statement must be balanced against the drafter’s parallel concerns 32
about the 51 Convention becoming a “blank cheque that would leave their societies exposed to unknown and uncontrollable levels of migration in the future.” 33
In view of these basic humanitarian principles, the conditions for refugeehood stipulated in article 1(A)2 should aptly cover most victims of armed conflicts,without undue extension of the 51 Convention. To begin with, in determining the existence of a well-founded fear of persecution an analysis of the general situation prevailing in the country fled from and the personal circumstances of the applicant are key. The existence of an armed conflict, as a general situation, is then clearly a key consideration. In analysing the applicant’s personal circumstances, the emphasis is on the individual nature of the fear. But, such fear might originate from a collective phenomenon that indistinctively affects a group. The individual nature of fear does not entail only individual persecution. Persecution may be of a collective character, as exemplified by the 51 Convention’s reasons for persecution (race, religion, etc). For instance, a common ethnic or racial origin is shared by many people. And it is such considerations of ethnicity, religion, etc that form the reasons for which many contemporary wars are waged. Therefore, although not 34
explicitly mentioned in article 1(A)2, there is nothing precluding the consideration of war victims as convention refugees. The criteria of a well-founded fear of persecution for reasons of race, etc should be applicable to their circumstances.
J Moore, Humanitarian Law in Action within Africa (OUP 2015) 155 32
H Storey, 'Armed Conflict in Asylum Law: The War-Flaw' [2012] 31(2) Refugee Survey Quarterly 1 33
V Chetail, Armed Conflict and Forced Migration: A Systemic Approach to International Humanitarian Law, Refugee 34
Law and Human Rights Law. in A Clapham and P Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014) 722-723
II. Well-founded fear of persecution
A close examination of how most states have applied the conditions of article 1(A)2 in practice, illustrate why war refugees receive inadequate status and protection under the 51 Convention. The first criteria for refugeehood is that of ‘well-founded fear of persecution’. “A decision on the well-foundedness of such a fear is essentially an essay in hypothesis; an attempt to prophesy what might happen to the applicant in the future, if returned to his or her country of origin.” 35
The standard of proof for judging such future fears, advocated by most states and the UNHCR, is that of ‘reasonable possibility or chance’. And yet, certain states like USA have been known to implement a higher standard of proof in the case of victims from armed conflict. Based on the widespread nature of armed conflict where violence and discrimination is the norm (as multiple parties fight each other), applicants have been asked to prove that their fear is based on something more than just a reasonable possibility of persecution.
A distinction between situations of war and peace is being read into the 51 Convention; a distinction which does not exist in its content. 36
Kagan and Johnson further highlight the difficulties of applying the persecution criteria to determine refugee status in the ‘fog of war.’ The nexus that must be established between the risk of persecution and one of the five Convention-recognized reasons for persecution becomes particularly complicated in an armed conflict. The two academics illustrate this by critiquing the Adan case that came before the highest court of the United Kingdom (UK), the House of Lords. In a case concerning Somalian clan warfare it was found that the heightened risk of persecution faced by minorities could satisfy the nexus requirement. But, the persons in question must be differentially at risk to receive refugee status. Providing such differential risk in the midst of a civil war, when multiple clans are being targeted, impedes and restricts refugee status. Kagan and Johnson have critiqued this legal ruling as erroneous. Based on the text of the 51 Convention they stipulate that when the (potential) persecution is caused for Convention reasons, the nexus
Goodwin-Gill and McAdam (n18) 53-58 35
Holzer (n11) 105-107 36
requirement is satisfied. This is so, irrespective of any particular vulnerabilities. But it is not 37
just the British courts that have emphasised the need for individually-differential risk. Other national jurisdictions, such as Canada, have also adopted similar approaches. Storey critiques these as imposing an additional standard that is not expressly stipulated in the 51 Convention, quoting the Australian Federal Court in this regard: “It is difficult to see the basis on which a super-added requirement of “greater risk”, “differential risk” or “risk over and above that arising from clan warfare” can be derived as a criterion for application of the (1951 Refugee) Convention definition where the war is based on race or religion; given the purpose of the Convention and the well-settled principle that a broad, liberal and purposive interpretation must be given to the language.” 38
It is perhaps worth pointing out that the notion of individualised risk is not an entirely fabricated concept devised by states to restrict responsbility. Although the concept of refugeehood and international protection for refugees was developed following the mass displacements caused by the second world war, the 51 Convention was actually drafted during the Cold War- an era that emphasised the individual, political asylum seeker. Thus, the individual goes to the heart of the 39
51 Convention but this does not entail that groups of refugees are to be excluded from its remit. J van Selm put it best-“The drafters' desire to balance the individual right to protection with the need to manage massive refugee flows did not result in a Convention aiming to control the individual status of each refugee via an individualised approach, but rather in a Convention which sought to guarantee status to each person making up the mass of the refugee group.” 40
Recognising refugees as individuals within a group fleeing armed conflict has proved to be challenging.
Kagan and William (n10) 37
Storey (n33) 9 38
Stevens (n23) 39
J van Selm, 'Book review: Ivor C Jackson, The Refugee Concept in Group Situations' [2000] 12 International 40
Another difficulty that plagues persecution is the concept itself. The 51 Convention does not define the concept but it is typically associated with serious harm to a person and the violation 41
of human rights and IHL norms that prohibit such harm. In the case of armed conflict, the risk of regular exposure to violence and other harmful consequences that are common in war can amount to persecution for the purposes of article 1(2)(A). Such risks may manifest independently or cumulatively. What is key is the seriousness (intensity) of the activity or of its consequences. 42
This emphasis on seriousness has lead to the development of a state-practice that differentiates between ‘ordinary instances of war’ and ‘extraordinary instances’. An example of the former is a civilian caught in crossfire while a deliberate violation of IHL is an example of the latter. This 43
nods to a possible cross-discipline approach to refugee status that forms the subject of chapter 5. But, for now, it is clear that it can be difficult to determine persecution for a victim of armed conflict without recourse to the legal context of war.
III. Causal Nexus
Of course, refugee status not based on just persecution but persecution for reasons of race, religion, etc. There must be a causal nexus between the persecution felt or fear and a ground stipulated in the 51 Convention. For victims of war (and other refugees), the relevant Convention ground to establish a causal nexus must be determined accounting for the factual context (causes, character and impact of the feared harm) and the objective predicament. The complex circumstances of persons fleeing armed conflict affect the causal nexus. A key aspect of armed conflict is the presence of indiscriminate and widespread violence. But, the motivation for particular violence can be discriminate and persecutory. The issue of determining such
persecution in a fog of discriminate indiscriminate acts impedes refugee status for war victims. 44
Holzer (n11) 113 41
UNHCR Summary Conclusions (n14) 42
Holzer (n11) 121-163 43
UNHCR Summary Conclusions (n14) 44
In exploring the presence of such causation within an armed conflict, Holzer’s analysis is particularly illustrative. Firstly, most civil wars have strong national, racial and religious dimensions and so civilian victims from targeted communities would look to establish a causal nexus here (although their claims for refuge may still be rejected for want of individualised risk). Ethno-religious communities that have successfully received refugee status based on persecution in an armed conflict include the Sri Lankan tamils and christians in Iraq. Secondly, political opinion is another Convention ground that is often related to war victims. It pertains to opinions held vis-a-vis the state, government, society or official policy. Most modern conflicts- particularly in the Gulf- are dominated by a variety of non-state religious actors with political goals. The activities of these organisations are often unpredictable and contradictory and they view anyone with a different religious affiliation as a political opponent, regardless of the political views actually held. It is not immediately obvious how such multi-layered persecution, that goes beyond official political status, is to be reconciled with the causal nexus. Finally, the ground of ‘particular social group’ has interesting implications for civilians fleeing warfare. Some basic principles frame this wide and flexible ground- a group need not be internally coherent or large. Not all members of the group need be at risk. And the group cannot be solely defined by a shared risk of persecution. A group may be identified based on a common immutable characteristic (protected characteristics) or because of a shared characteristic that sets them apart from society at large (social perception). Thus, as individuals who flee in groups, the victims of mass warfare might be recognised as persecuted under the ground. However, as civilians fleeing the effects of mass warfare they would be united based solely on the risk of widespread persecution. They are not immediately a social group for the purposes of the 51 Convention. What factors are to go into determinations of protected characteristics or social protection here? It is difficult to determine this without going beyond the refugee context and looking at the how armed conflicts are framed. Despite the liberal agenda of the 51 45
Convention, its application to war victims is fraught with conceptual difficulties.
IV. Wider Considerations
Holzer (n11) 183-218 45
States are justified in attempting to definitely frame the eligibility criteria for refugeehood. This ensures that the concerns of international protection for refugees remains distinct from the concerns of international migration. Moreover, there is something to be said for the legal certainty that a clear, precise definition provides. However, far from providing a clear legal construction, the current approach towards war refugees is more often simply confusing. When victims of war are as recognised as refugees, it is on an exceptional basis. “It seeks to say on the one hand that yes, persons fleeing armed conflicts can qualify if those conflicts feature persecutory conduct. Yet on the other hand it seeks to say, but no, even if the conflicts concerned are fought on racial or religious grounds, such persons cannot qualify.” In critiquing the current 46
exceptionalism, it is worth remembering that the alternative is not normalcy i.e. recognising all victims of armed conflict as refugees in need of protection. This would invalidate the basic 47
refugee criteria of the 51 Convention. The argument being made is that the Convention could be used to identify bona fide war refugees, but states have refrained from doing so for fear of ‘opening the floodgates’ (an oft-cited political argument).
Before moving on, it is noted that the obligation of non-refoulement is not much discussed, despite being part of the protection offered to refugees and other vulnerable persons (ie protection from return to a harmful situation). This is because the emphasis of this research project is on the recognition of refugees. To put it in Convention terms, the focus is on how refugees from armed conflict are construed and protected under article 1(A)(2) rather than the protection from refoulement under article 33. 48
Storey (n33) 9 46 Storey (n33) 47 1951 Convention (n33) 48
Chapter 4: Complementary Protection: A Solution to the Issues faced by Victims of War under the 1951 Convention?
“At the outset, it is essential to appreciate that the ‘complementary’ aspect of complementary protection is not the form of protection or resultant status accorded to an individual, but rather the source of the additional protection. Its chief function is to provide an alternative basis for eligibility for protection. Understood in this way, it does not mandate a lesser duration or quality of status, but simply assesses international protection needs on a wider basis than the dominant legal instrument, presently the 1951 Convention.” 49
Before moving onto the substantive subject of this chapter, it is noted that several of these forms of complementary protection evolved as a response to the obligation of non-refoulement- codified in the article 33 of the 51 Convention and an important customary obligation incumbent on states- that forms the cornerstone of the international protection regime (including refugee protection). As such, complementary protection more effectively closes the gaps in the issue of 50
refugee refoulement, rather than the scope of protection offered.
I. Complementary protection under the OAU Convention and Cartagena Declaration
The first crucial instrument of complementary protection, is the OAU Convention of 1969. Article 1(1) of the OAU Convention echoes the 51 Convention. Article 1(2) goes further and adds 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
J McAdam (n12) 23,24 49
H Lambert, 'The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate 50
habitual residence in order to seek refuge in another place outside his country of origin or nationality” 51
While not explicitly mentioning the terms “war” or “armed conflict” the emphasis on external aggression and the disturbance of public order implicitly brings war refugees within the realm of protection. The diverse nature of the various armed conflicts that plague the African continent framed the expansive and all-inclusive nature of this definition. It’s purpose is to do exactly 52
what the drafters of the 51 Convention intended- organically expand the 51 Convention to account for new circumstances. It explicitly recognises refugees that would be implicitly 53
recognised by the 51 Convention (if applied in good faith). Moreover, the provisions of article 1(2) of the OAU text are free from the difficulties of “a well-founded fear of persecution”, a concept which remains tied to the individual, despite attempts at applying it to groups of individuals (as illustrated in the previous chapter). Refugees fleeing groups are more easily recognised under this instrument.
The Cartagena Declaration does much the same in the Latin American context, but, as it is a 54
declaration and not a convention or treaty its status as a legally-binding text is difficult. However, when adopted it was drafted to reflect emerging state practice and so, it does hold some status as a regional, customary norm. Moreover, the Declaration goes beyond the OAU Convention in that it elucidates more on the notion of armed conflict, in view of internal and low-intensity conflicts rampant on the continent. 55
'OAU Convention Governing The Specific Aspects Of Refugee Problems In Africa' (UNHCR, 1969) <http:// 51
www.unhcr.org/about-us/background/45dc1a682/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted.html> accessed 10 June 2016. (OAU Convention)
Storey (n33) 7 52
Moore (n32) 157-160 53
'Cartagena Declaration On Refugees' (UNHCR, 1984) <http://www.unhcr.org/about-us/background/45dc19084/ 54
cartagena-declaration-refugees-adopted-colloquium-international-protection.html> accessed 10 June 2016. (Cartagena Declaration)
Moore (n32) 157-160 55
Despite these measures that purport to close protection gaps under the 51 Convention, there are some crucial issues that plague them. To begin with, both instruments are regional in their scope. Thus, the protection gap is only closed for an applicant claiming refugee status in these regions. Moreover, they have been drafted to account for the specific type of fighting rampant 56 in these regions that is difficult to categorise in international law terminology. This has lead to wide concepts and indicators (rather than definitions) that usefully provide flexibility and scope for future development but make the determination of objective criteria difficult. Furthermore, 57 the UNHCR has indicated that refugee status determination under the 51 Convention is to be preferred before other mechanisms are looked to. The implication of this is a split in refugee 58 status between 51 Convention and non-Convention refugees. Such a hierarchy could lead to inequality in the consequences of refugee status, based on the instrument used. The inequalities that hierarchical status may lead to is exemplified in the EU protection scheme discussed below.
II. Subsidiary protection in the European context
The EU has adopted a commuitarian asylum and protection regime, situated within its member states’ responsibilities as signatories to the 51 Convention. The regime, labelled as the Common European Asylum System (CEAS), is an aggregation of various directives and regulations. It aims at common standards for all facets of asylum and refuge in the EU. Of key concern here, are the CEAS provisions that regulate the types of protection and the rights granted to those eligible for protection. Particularly, the 2011 (Recast) Qualification Directive, which is directly 59
concerned with refugee status and other, subsidiary international protection. Unlike the African and Latin American instruments, the CEAS does not purport to expand the conventional 1951
UNHCR Draft Guidelines (n14) 56
A Edwards, 'Refugee status determination in Africa' [2006] 14 African Journal of International and Comparative 57
Law 204
UNHCR Draft Guidelines (n14) 58
Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the 59
qualification of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L 337/9 (Recast Directive)
definition of a refugee to include victims of armed conflict. For such victims, it creates a separate category of international protection, based on the non-qualification for refugee status. Under 60
the CEAS, “A Person Eligible for Subsidiary Protection means a third-country national or a stateless person who does not qualify as a refugee (conceptualised according to the 51 Convention) but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, …. and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” The article 15 notion of serious harm includes, inter alia (in subsection ‘c’), “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” The emphasis 61
on risk of serious harm, rather than persecution, does certainly alleviate the problems of the latter criterion under the 51 Convention.
The legal discourse pertaining to the Recast Qualification Directive has highlighted the improvements from its 2004 predecessor. Under the earlier phase of the CEAS, when applied in practice, the protection measures adopted fell short of European states’ international obligations. Member states’s refugee and human rights responsibilities- particularly, to not refoule persons to situations of harm were not adequately enforced. The 2011 Directive has looked to remedy this by increasing the scope of the protection offered. Examining the text of the 2011 Directive, 62
article 20 makes it clear that the content of protection, as codified, applies equally to refugees and subsidiary status (although it does allow for some differentiations). 63
C Bauloz and others, Introducing the Second Phase of the Common European Asylum System. in C Bauloz and 60
others (eds), Seeking asylum in the European Union : selected protection issues raised by the second phase of the common European asylum system (Brill Nijhoff 2015) 1-19
Recast Directive (n59) art 2,15 61
Bauloz and others (n60) 1-19 62
Recast Directive (n59) art 20,22,23,26,27 63
Based on the codification of such wide protection responsibilities and rights, the inference can be made that the difference between refugee and subsidiary status is not of significance. The separation of these two protections may be construed as respecting the integrity of the 51 Convention, which forms the very basis of the CEAS. And subsidiary protection follows the expectations of the drafter of the 51 Convention, by expanding its scope.
A deeper analysis of the criteria elucidates in the 2011 Directive, reveals a more complex situation. The Recast Directive continues to use the same criteria as its predecessor to determine eligibility for protection- particularly the crucial stipulation of ‘serious harm’. The rationale behind this continuation was based on the deemed sufficiency of the clarifcations that the case law of the Court of Justice of European Union (CJEU) provided. The key CJEU case is that of 64
Elgafaji, which sought to reconcile the need for proof of an individual risk of harm (as is dominant in refugee law criteria) with the aim of the provision to protect those fleeing indiscriminate violence. As discussed in the leading literature, the CJEU Grand Chamber adopted a sliding scale approach with respect to the threshold for serious harm for a grant of subsidiary protection. In short, an applicant must prove serious harm by establishing a high level of indiscriminate violence in the country fled from. In the face of a lower level of violence, the applicant must establish the individual risk he faces. It left it to the national authorities of member states to analyse the level of indiscriminate risk. 65
Another key aspect of the criteria for subsidiary protection is the explicit mention of ‘international or internal armed conflict’ in article 15(c). The case of Diakité is instrumental here- “an internal armed conflict exists, for the purposes of applying that provision, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other (following the ordinary meaning of this concept). It is not necessary for that conflict to be categorised as ‘armed conflict not of an international character’ (NIAC) under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed
Bauloz and others (n60) 17 64
Storey (n33) 25,26,27 65
confrontations, the level of organisation of the armed forces involved or the duration of the conflict.” The case does not define international armed conflict but following the rhetoric for 66
internal conflict, an international conflict is likely to be following the ordinary meaning. Moreover, in constructing this EU-centric definition, the court emphasised that the crucial aspect of article 15(c) is the presence of indiscriminate violence. An armed conflict alone does not suffice. 67
It is immediately obvious that the Diakité criteria aims to provide the widest possible protection, by going beyond armed conflict and emphasising protection from indiscriminate violence. Higher standards and more protection certainly go a long way towards addressing the difficulties of applying the 51 Convention to 21st century refugee flows. Arguments about how the EU’s independent definition for armed conflict creates a fragmentation in international law have been countered by the notion that the EU’s definition is for the purpose of determining subsidiary protection. The IHL concept of armed conflict still remains the key lex specialis applicable to the conduct of war. Moreover, this extension purports to respect the basic aim of protection for 68
human dignity that underlies both regimes- subsidiary protection and IHL- and is also supported by the UNHCR. 69
Despite the aim of providing humanitarian protection beyond the 51 Convention, subsidiary protection in the EU is not without its issues. In the words of McAdam, “subsidiary protection is by no means an automatic safety net for people who do not meet the (51) Convention definition
Case C-285/12, Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides (Fourth Chamber, 30 66
January 2014) (Diakité)
'Article 15(C) Qualification Directive (2011/95/EU) – A Judicial Analysis' (European Asylum Support Office, 2014) 67
<https://www.easo.europa.eu/training-quality/courts-and-tribunals> accessed 5 June 2016. (Article 15c judicial analysis)
C Bauloz, 'The Definition of Internal Armed Conflict in Asylum Law' [2014] 12 Journal of International Criminal 68
Justice 835
SF Nicolosi, 'Disconnecting humanitarian law from EU subsidiary protection: a hypothesis of defragmentation of 69
of ‘refugee’ but whose fundamental human rights are at risk.” The (Recast) Qualification 70
Directive takes a decidedly sequential and hierarchical view of the two forms of protection. Refugee status is above subsidiary protection, the latter serving as a form of residual rather than complementary protection. The residual nature of subsidiary protection would not be a problem if it served to ensure that protection was still available, when a thorough examination of the refugee criteria denied status; if the sequential nature of the Directive was upheld. The actual practice of certain states, however, has fallen short of this standard. Particularly in the case of war victims, these states conducted a superficial examination of the refugee criteria and overused subsidiary protection, contrary to its purpose. And as the rights under residual protection tend 71
to be fewer, states are able to accept less responsibility than they customarily should. Although rights offered to the two types of 2011 Qualification Directive protectees now coincide, in a legal sense they are not entirely equal. Some rights, for instances those concerning social welfare, do not fully accrue in the case of subsidiary protection. It is true that only a minority of states actually took up the option (under the old 2004 regime) of treating persons awarded subsidiary status worse than refugees. However, this does not change the fact that such discrimination is 72
legally permissible. And it is this factor that contributes to the gap in the legal protection of refugees that subsidiary protection might have otherwise fulfilled. Moreover, the protection gap might even widen as the European Commission has declared plans to further differentiate between refugee and subsidiary status. 73
This issue is compounded by the fact that the criteria stipulated in articles 2 and 15 and developed through CJEU case law is not as clear as hoped for. Despite the cases (particularly
J McAdam, Individual risk, armed conflict and the standard of proof in complementary protection claims: the 70
European Union and Canada compared. in J Simeon (ed), Critical Issues in International Refugee Law (Cambridge 2010) 83
UNHCR summary conclusions (n14) 71
S Peers, 'The Revised Directive On Refugee And Subsidiary Protection Status' (Statewatch, 2011) <http:// 72
database.statewatch.org/article.asp?aid=30784> accessed 9 June 2016.
European Commission, ’COM/2016/0197- Towards A Reform Of The Common European Asylum System And 73
Enhancing Legal Avenues To Europe' (InterParliamentary EU Information Exchange, 2016) <http://www.ipex.eu/ IPEXL-WEB/dossier/document/COM20160197.do> accessed 28 July 2016. (Commission statement)
Elgafaji) that discuss the threshold and indicative factors of indiscriminate violence for the purposes of assessing a real risk of serious harm, this criteria lacks an objective, conceptual framework. What are the factors that best determine the existence of indiscriminate violence? Is it intensity (itself a convoluted concept), the frequency of attacks (begging the question- what activities are to be considered as armed attacks) or their cumulative effect? A close examination 74
of the Elgafaji criteria reveals that much discretion is left to the implementing EU states in deciding the nature and level of indiscriminate violence. While there has been a degree of consistency and dialogue between the various EU states, ultimately, they value the deciding factors differently. In several member states, the burden of proof here has become particularly 75
high, stressing both individual threat and the practical certainty of death or severe injury. Moreover, “real risk” of serious harm has been frequently taken to mean risk that is more than a mere possibility. Stipulated as such, this standard of proof may well be higher than the standard 76
of ‘reasonable possibility’ under the 51 Convention. Subsidiary burden then places a higher evidentiary burden, where it should place less (by virtue of being a tool for protection against indiscriminate violence).
The Diakité case does provide some objectivity, in its framework for identifying an internal armed conflict. And while the case’s extension beyond IHL definitions is commendable, its dismissal of the concept is not wholly substantiated. International conferences have identified that while IHL conceptions need not be determinative for international protection but they can be informative. According to Diakité, subsidiary protection is premised on indiscriminate 77
violence; armed conflict merely one indicator of such violence. In light of this, the case’s advocation of an EU-centric definition of armed conflict might seem unnecessary. As the commentary on the key IHL instruments illustrates, this discipline provides an informative framework for armed conflict and its conception of NIAC is quite broad and open-ended. True,
S Juss, 'Problematizing the Protection of ‘War Refugees’ [2013] 32(1) Refugee Survey Quarterly 122 74
Lambert (n50) 227,228 75
McAdam in Simeon (ed.) (n70) 70-84 76
UNHCR summary conclusions (n14) 77
the IHL threshold for a determination of armed conflict is quite high in that it excludes notions of violent internal disturbances that may still give right to protection needs. However, such 78
disturbances may be ideally conceived under the framework of indiscriminate violence. The previously-mentioned debate on fragmentation of international law might have been avoided and the protection of human dignity would still be achieved. Indeed, when viewed in such minute detail it can be said that Diakité confused the status of IHL, rather than demarcating the lines of a lex specialis field of law. This confusion is further apparent in the case of international armed conflicts. The implication in Diakité was that this concept was to be ascribed its ordinary meaning. Such an ordinary meaning would be closely aligned to its definition under IHL and wider international (UN) instruments that have been built on its ordinary meaning of inter-state conflict. This creates a an unjustified divide, with IHL applying to one type of armed conflict 79
but not another. Crucially, though, this criticism of Diakité is not to be confused as calling on judicial authorities to make IHL determinations of armed conflict (an issue discussed in the following chapter). Rather, judicial authorities are called on to use IHL determinations made by agencies like the International Committee of the Red Cross (ICRC) whose mandate it is to do so. The present argument is a criticism of the way the judgement was formulated, as it might be 80
construed as allowing states to ignore applicable-IHL and restrict protection. The potential for misuse and misinterpretation is what is condemned here.
Overall, the EU approach to subsidiary protection has been characterised by an emphasis on exceptionability of the claim (comparable to that under the 51 Convention) and conceptual and definitional issues. This impedes its effectiveness as a gap-filling tool. 81
'Geneva Conventions And Commentaries' (International Committee of the Red Cross) <https://www.icrc.org/en/ 78
war-and-law/treaties-customary-law/geneva-conventions> accessed 11 June 2016. (Geneva Conventions) ibid
79
'Mandate And Mission' (International Committee of the Red Cross, 2016) <https://www.icrc.org/en/who-we-are/ 80
mandate> accessed 28 July 2016. Lambert (n50)
Chapter 5: A Role for International Humanitarian Law
The previous chapters established the unhappy situation of war refugees- their exclusion from refugee status and the inadequacy of complementary protection. The main finding of these chapters was that armed conflict creates refugees who cannot be easily identified by using only the existing tools of refugee and complementary protection. The protection gap stems from the inability to reconcile the situation of war victims to the legal criteria for refugee protection. Recall that the international framework for the protection of individuals includes various distinct but interrelated disciplines; including, the humanitarian laws of armed conflict. It is then worth 82
exploring a role of international humanitarian law in closing the aforementioned protection gap. This chapter explores the laws and theories of armed conflict that can be used to identify the legal characteristics of war victims; facilitating the application of the criteria for refugee protection to them. Humanitarian law may inform the concepts of refugee law as stipulated in the 51 Convention, promoting synergy between these two branches of international law.
I. Justifying a cross disciplinary approach
On the face of it, refugee and humanitarian laws are different from each other and only analogously-related. Despite the shared value of protecting human dignity, the former aims to protect persons who have escaped a persecutory situation while the latter seeks to protect persons within the territory of an armed conflict (with persecutory effects). The crossing of an international border is what separates the two. A deeper examination of their philosophical 83
underpinnings reveals a strong argument for a shared conceptual basis that facilitates synergy between these two fields.
Holzer (n11) 81 82
M Jacques, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under 83
The two main tenets of warfare are jus ad bellum and jus in bello. The former refers to the legal basis and rationale for commencing armed conflict while the latter dictates actual legal conduct in war. The doctrine of jus in bello informs international humanitarian law. 84
It could be said that refugee law is more aligned with the commencement of armed activity rather than its conduct, as the following analysis of their underlying principles shows. Jus ad bellum dictates the legally-permissible reasons that justify use of armed force. The use of force must be proportional, based on just causes and intentions. The 51 Convention refugee discourse, 85
emphasises persecution caused for reasons of race, etc.” The legal analysis of this causal nexus 86
has revealed that while persecutory intent need not be established, notions of discriminatory intent and predominant motivations have been resorted to. The intent to target or discriminate 87
based on race, etc is particularly used in common law systems. Thus, the congruence between 88
jus in bello and the refugee law stems from this shared foundation of causation. An unjustified motivation to use force may also have discriminatory and persecutory elements.
Such an approach highlights the segregation between the two tenets of war; a distinction rooted in the fact that violation of one does not affect the application of the other. This separation 89
questions the potential for interaction between jus in bello IHL and refugee law. However, the legal discourse suggests that the concept of jus ad bellum does not simply govern the initiation of armed conflict, but also the subsequent activities engaged in. Following this rhetoric, it is then 90
Fleck (n19) 1,13,19 84
DM Jackson, Jus Ad Bellum. in DK Chatterjee (ed), Encyclopedia of Global Justice (Springer 2011) 581 85
1951 Convention (n9) Art1(A)2 86
H Lambert, ‘Causation in International Protection from Armed 87
Conflict’, in D Cantor and J-F Durieux (eds), Refuge from Inhumanity (Martinus Nijhoff Publisher, 2014)
H Storey, 'What Constitutes Persecution? Towards a Working Definition' [2014] 26(2) International Journal of 88
Refugee Law 272, 275
J Martinez and A Bouvier, ‘Assessing the Relationship Between Jus in Bello and Jus ad Bellum: An Orthodox View’ 89
[2006] 100 Proceedings of the Annual Meeting (American Society of International Law) 109
M Schulzkea, 'The contingent morality of war: establishing a diachronic model of jus ad bellum' [2015] 18(3) 90
prudent to constantly revisit the rationale for the activities that occur in wartime. The concepts of jus ad bellum and jus in bello are thus distinct but complementary. They are applicable together and co-exist as such. An unjustified use of force may result in unlawful methods of conducting conflict. Various judicial precedents at the international level confirm this. Thus, a violation of 91
jus in bello can ultimately be indicative of an unlawful use of force that amounts to persecution under the 51 Convention.
Ofcourse, the legality of an action or motivation does not preclude persecution. No where in the 51 Convention does it state that persecution arises only from illegal acts. However, the value of 92
jus in bello and jus ad bellum concepts goes beyond mere determinations of legality. “The jus in bello may be ‘jus ad bellum neutral’ in that it is not partial to a certain type of cause as justifying resort to force, but it does, in a very profound way, tell us what war is (as opposed to which wars are legal).” The methods of warfare chosen are illuminative of the underlying reasons, which 93
may be generally persecutory.
Beyond this philosophical synergy, actual legal practice is decidedly in favour of the two branches of international law drawing on each other in contexts where they are both applicable. It has been accepted that in applying the exclusion clauses of the 51 Convention, IHL may be looked to. By analogy, IHL should be applied to other sections of the Convention, where it 94
could have a bearing. Especially as, for the context of armed conflict, IHL is the recognised lex specialis. The branches of international law are not hierarchial but their very expertise entails that they should be applied to contexts related to their subject matter. 95
K Okimoto, The Distinction and Relationship between Jus ad Bellum and Jus in Bello (Hart Publishing 2011) 32 91
Zimmermann (n8) 92
F Mégret, 'Jus in Bello and Jus ad Bellum' [2006] 100 Proceedings of the Annual Meeting (American Society of 93 International Law) 121 Storey (n33) 14 94 Storey (n33) 25 95
The use of IHL to determine the circumstances of a war victim for refugee status is also in line with the concept of distress as a general principle of international law. As identified by Coles, the legal doctrine of distress allows for a wide, humanitarian approach. This would also extend to refuge sought for reasons of distress. The humanitarian norm of refuge is based on the notion of compulsion- “where the circumstances in the country of origin were such that the person seeking refuge should be recognised as having a sufficiently grave reason for entering another country and obtaining refuge there.” The governing role played by IHL helps analyse such compulsion. 96
II. IHL provisions that pertain to civilians
It is worth elaborating the key provisions of IHL that elucidate how civilians trapped in armed conflict are viewed. The main codified sources of international humanitarian law are the four Geneva Conventions of 1949 and their three 1977 Protocols. Convention IV directly addresses the issue of civilians in conflict. Bugnion succinctly states the core Geneva Convention IHL 97
principles that affect civilians in armed conflict. War activities must be directed against military and not civilian objects. Military objects are those ”which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Civilian objects may never be the target of attacks or reprisals.” Common article 3 98
of the Geneva Conventions extends civilian protection from international to non-international conflicts (as beyond this article, the remaining text of the Conventions pertains mostly to international conflicts). Article 3 clearly states that ”persons taking no active part in the hostilities ... shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” The 99
Coles (n20) 150-151 96 Geneva Conventions (n78) 97 Bugnion (n1) 1404-1405 98
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, 99
