Geoff Gilbert
An Introduction to the Law Relating to the Protection of
Displaced Persons in Situations of Armed Conflict
Contents:
INTRODUCTION
1. THE OBLIGATIONS OF STATES TOWARD DISPLACED PERSONS
1.1 Well-founded fear
1.2 Persecution for a Convention Reason
- 1.2.i Persecutor?
-
1.2.ii Persecution?
-
1.2.iii Excluded Persons
1.3 If a person qualifies as a refugee
under the 1951 Convention, then they shall not be refoulé to a State where
their life or freedom would be threatened - Article 33.
2. U.N.H.C.R. AND ACUTE CRISES
3. U.N.H.C.R. AND THE INTERNATIONAL LAW OF ARMED CONFLICT
4. PROBLEMS AND RECOMMENDATIONS
See elsewhere: Author's Biography
(appendix C)
Introduction
This paper divides into four sections, although in reality
these distinctions are not so clear-cut: the obligations of States towards
displaced persons; the position of UNHCR in acute crises; the obligations of
States toward displaced persons in time of armed conflict under humanitarian
law; and, problems for displaced persons and UNHCR not so far resolved.
1. The Obligations of States toward Displaced Persons
The term displaced persons is used to refer to both those who
have crossed an international border and may qualify as refugees and to those
who are internally displaced. The starting point with respect to the obligations
of States is the 1951 Convention Relating to the Status of Refugees1 - States
surrounding the State suffering the acute crisis will bear the initial burden of
anyone who manages to cross an international border, but subsequently acute
crises will give rise to refugee flows to Europe and North America and other
industrialised States.
The 1951 Convention, as amended by its 1967 Protocol, imposes
obligations on States with respect to anyone who
"owing to a well-founded fear of being 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, is unable or, owing to
such fear, is unwilling to return to it". (Article 1A.2)2
While twentieth century practice towards displaced persons
focused originally in the inter- War period on groups, the 1951 definition has
become very individualised - can this particular applicant for refugee status
show a fear of persecution for one of the five enumerated grounds. The result,
discussed more fully below, is that people fleeing armed conflict or other acute
crisis still need to prove that they have a well-founded fear of persecution for
one of the Convention reasons. Ordinarily, those fleeing armed conflicts will
not automatically qualify as refugees according to UNHCR’s 1979 Handbook on
Procedures and Criteria for Determining Refugee Status:3
"Persons compelled to leave their country of origin as a
result of international or national armed conflicts are not normally
considered refugees. ... However, foreign invasion or occupation of all or
part of a country can result in persecution. ... Thus, every case has to be
judged on its merits ...."
1.1 Well-founded fear
No attempt is made here to explore fully the intricacies of
the terms set out in Article 1A.2.4 The fear must be subjective to the applicant,
but must also be objectively justified. The more objective evidence there is for
the fear, the more immigration officials will accept an assertion of personal
fear.
1.2 Persecution for a Convention Reason
1.2.i Persecutor?
This requirement raises a number of issues. The first
concerns from where must the persecution stem. There is no problem where the
State is the source of persecution or where it encourages or condones
persecution by third parties. There is, however, a lack of consensus where the
State fails to be able to prevent persecution by a third party, such as a rebel
insurgent group, and where the State has collapsed, such that no one power is in
control.5
1.2.ii Persecution?
As for what amounts to persecution, violations of the non-derogable
civil and political rights, pre-eminently torture, obviously fulfil the test,
given the fear is current. Detention can also amount to persecution,
particularly if it is the consequence of the applicant’s exercise of a matter of
conscience. Less certain is whether interference with economic, cultural and
social rights will suffice - discrimination against an ethnic group within the
State in relation to the opportunity to obtain work or the allocation of housing
could in certain circumstances be seen as persecution.6
The problem with being caught up in an armed conflict,
international or non-international7, is that the threat to life and human dignity
may not be seen as persecution - there is nothing individualized in the threat.
That position may be changing, though, and the Canadian Immigration and Refugee
Board produced Guidelines on Civilian Non-Combatants Facing Persecution in
Civil War Situations8 in 1996 which adopt the opposite interpretation to that
traditionally held to be the law. Under the Canadian approach, one has to see
whether the applicant can prove a link between her/his fears arising from the
armed conflict and persecution for a Convention reason, but the claimant need
not show that s/he was personally targeted. Recent non-international armed
conflicts have evinced tactics which violate the laws of war9 or constitute gross
human rights violations for Convention reasons, such as ethnic cleansing in
Bosnia-Herzegovina or genocide in Rwanda.
"Where the persecution which has occurred, or the
possibility of persecution in the future, is directed at the claimant’s
group as a whole rather than each individual member of the group, it is the
fact of membership in the group which provides the foundation for the fear.
Where the targeting is due to the possession of a certain characteristic
related to a Convention ground, then all those who possess the
characteristic may be at risk of harm by reason of their possession of that characteristic. In such a case, the linkage to a
Convention ground is not negated
by the fact that the persecutor does not ‘discriminate’ between one
possessor of the characteristic and another possessor of the same
characteristic. What is important is that the group is targeted, or that
there is a reasonable possibility of the targeting of the claimant or the
group in the future."10
Under the Canadian Guidelines, being killed in crossfire
between opposing militia is a risk for all civilians in an armed conflict: on
the other hand, being the subject of shelling because your village is
principally populated by members of a particular ethnic group, being raped
because you are a woman from a particular ethnic group, suggests Convention
refugee status for the applicant.
1.2.iii Excluded Persons
By way of corollary, it should also be borne in mind that a
person with respect to whom there are serious reasons to believe that they have
committed war crimes, crimes against peace or crimes against humanity, other
serious non-political crimes or acts contrary to the purposes and principles of
the United Nations, shall not enjoy refugee status - Article 1F. It should not
be thought, however, that unarmed, civilian UNHCR workers should have to
exercise this exclusionary power where those with respect to whom there are
these serious reasons for denying refugee status are still armed and exercising
influence in camps.
1.3 If a person qualifies as a refugee under the 1951 Convention,
then they shall not be refoulé 11 to a State where their life or freedom would be
threatened - Article 33. 12
Where the person is displaced across an international border
in Africa, then the 1969 OAU Convention Governing the Specific Aspects of
Refugee Problems in Africa13 will provide additional rights14 and obligations.
Having reiterated Article 1A.2 of the 1951 Convention, the OAU Convention
provides:
"Article 1.2 - 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".15
Within the African continent, which has the largest number of
the people of concern to the United Nations High Commissioner for Refugees16,
people displaced by acute man-made crises are therefore accorded refugee status,
although if they leave Africa their claim will be judged under the 1951
Convention.
Beyond the Conventional protection of refugees, customary
international law may also have a role to play. If non-refoulement is to
have any practical effect, then displaced persons must have a right to seek
asylum in line with Article 14 of the Universal Declaration of Human Rights,
1948. Furthermore, considered opinion is that non-refoulement is also
customary international law - the only question is the scope of customary
non-refoulement. Is it only as broad as Article 33 and tied to the Article
1A.2 definition of refugees, or does it bear a wider meaning? Would it protect
all those from a war zone, even if they could not prove individualized
persecution for a Convention reason?17 Does the temporary protection offered in
the West enhance or detract from the customary status of non-refoulement?
Should temporary protection be formalised? All these questions go beyond the
scope of this paper, but they have a bearing on States’ obligations to those
fleeing acute crises.
Finally in this section on States’ obligations, international
human rights law has been seen to have a direct part in the protection of
displaced persons in an acute crisis under both the 1984 United Nations
Convention Against Torture18 and the European Convention for the Protection of
Human Rights and Fundamental Freedoms.19 Under Article 3 of the Torture
Convention, States are obliged not to
"expel, return ('refouler') or extradite a person
to another State where there are substantial grounds for believing he would
be in danger of being subjected to torture."
Article 3 of the ECHR similarly guarantees all persons within
the jurisdiction of a State party freedom from torture or inhuman or degrading
treatment or punishment. The European Court of Human Rights has applied this
protection such that if a third State would breach those rights, then the ECHR
State party would be in violation if it were to return a person to that third
State.20
It may seem strange to have started a paper on the rights of
displaced persons in time of acute crisis by focusing on States’ obligations not
to return them, as if they were already clear of the war zone and in an
industrialized State in the West. However, those rights apply to persons who
cross any international border who fear persecution for a Convention reason.
Furthermore, this approach should also make it clear that displaced persons are
owed rights by States and that it is the obligation of States to protect them
from that persecution.
2. UNHCR and Acute Crises
When one thinks of displaced persons in time of acute crisis,
the work of the United Nations High Commissioner for Refugees comes to the fore.
During the 1990s, the United Nations has been in a position to act in a more
interventionist way. Sometimes this was manifested as in the war against Iraq up
to the liberation of Kuwait, sometimes with less resolute action, such as
UNPROFOR’s unclear role in Bosnia-Herzegovina, sometimes by the equivalent of
"applying a sticking plaster to a gash to the carotid artery".21 It is principally
with respect to these last two types of situation that UNHCR has had to deal.
Where resolute action and political will to bring the crisis to an end were not
forthcoming from the United Nations, the resulting displacement of civilians has
meant that UNHCR has had to provide protection in circumstances which were not
secure, either for those displaced or for its own staff. UNHCR cannot ‘solve’ a
crisis which has given rise to displacement, only States can resolve the crisis,
with UNHCR providing protection to persons within its concern.
In this section, the position of UNHCR will be considered in
the light of its mandate and taking account of its extended functions as the
United Nations has required it to undertake a greater role in acute crises. It
should first be noted that under Article 35 of the 1951 Convention, States
parties must co-operate with UNHCR in supervising the application of the
Convention’s provisions. Nevertheless, the High Commissioner’s own mandate was
laid down in the 1950 Statute of her office.22 It has subsequently been expanded.23
It needs to be emphasised that the High Commissioner’s mandate is one of
protection; if assistance is provided, then it is only as an adjunct to
protection.24 Furthermore, the work of UNHCR is to be
"of an entirely non-political character; it shall be
humanitarian and social and shall relate, as a rule, to groups and
categories of refugees."
The High Commissioner reports to ECOSOC and thence to the
General Assembly. The General Assembly, by virtue of paragraph 9 of the Statute,
can extend the mandate. The High Commissioner is also advised by the decisions
of the Executive Committee (EXCOM).25 What needs to be noted is that there is no
express operation-oriented role in the Statute for either the Secretary-General
or the Security Council, although both can invite UNHCR to act.26
There are three areas where UNHCR’s role has come to the fore
in recent years. The first concerns voluntary repatriation. Voluntary
repatriation is mentioned in the Statute,27 alongside assimilation into the new
national communities in which the refugees find themselves - the overarching
responsibility of UNHCR is protection which must govern whether a voluntary
repatriation or assimilation is the preferred option. Voluntary repatriation,
however, is acknowledged to be the optimal solution. The main question for
international law is just how voluntary must the repatriation be?28 The OAU
Convention29, provides:
"Article V.1 - The essentially voluntary character
of repatriation shall be respected in all cases and no refugee shall be
repatriated against his will."
Thus, States in Africa which are hosting refugees, as
defined, cannot, at least in theory, repatriate them against their will. While
voluntary repatriation is mentioned as one of its functions in the Statute,
UNHCR has appeared to treat it as its primary response to refugee influxes in
recent years. It is laid down as a task of UNHCR in Article I.5 of the Dayton
Agreement and in the Quadripartite Agreement between UNHCR, Russia, Georgia and
Abkhazia of 4 April 1994.30
"Until a few years ago, it was assumed that repatriation
could take place only after a significant change in the political order of
the refugee creating country, or following a peace settlement. Today,
voluntary repatriation is considered the most desirable solution to
humanitarian crises, and active steps are being taken to create favourable
security, political, human rights and socio-economic conditions to enable
refugees and displaced persons to return home. Voluntary repatriation is now
taking place to relatively safe and secure areas in countries engulfed in
internal conflict or in the absence of a peace agreement."31
Whether Rwanda was safe at the end of 1996 when there were
mass returns from camps in Burundi, the former Zaire and Tanzania is open to
question. Amnesty International has accused UNHCR of ignoring the true human
rights situation in Rwanda at that time.32 Repatriation is, without doubt, one of
the main areas where the rights and responsibilities of UNHCR need
reconsideration.
"One of the greatest challenges facing UNHCR at present,
and one which is likely to grow in the years ahead, concerns the
organization’s involvement in situations where refugees are returning to
their own country because of external pressures or an absence of realistic
alternatives".33
UNHCR is left balancing the competing interests of the host
State, the source State and the refugees whom it has a duty to protect.
The original mandate was to refugees, that is those who had
crossed an international border and could show persecution for a reason set out
in the Statute.34 Today conflicts are predominantly non-international in
character35, and most concomitant displacement is within the State. One might have
a situation, therefore, where a non-international armed conflict is taking
place, some non-combatants have managed to cross an international border, others
are internally displaced, whilst a third group still live in their homes - the
disputes in Bosnia-Herzegovina and Georgia are good examples. If UNHCR provides
protection in such an acute crisis, then it is difficult to see how they can
separate out those truly within the 1950 mandate from the rest. UNHCR has worked
for several years with internally displaced persons in many crises.36 The question
is not whether this work is ultra vires the mandate, rather it is a
question of regularising the role. The Representative of the Secretary-General
on Internally Displaced Persons, Deng, is due to present a new set of Guiding
Principles on Internal Displacement to the Commission in March 1998 - this
definition will require only that the internally displaced person or group of
persons has been forced to flee
"in particular as a result of or in order to avoid the
effects of armed conflict, situations of generalized violence, violations of
human rights or natural or human-made disasters …."37
Whether there will be a United Nations High Commissioner for
Displaced Persons in the future, responsible for the protection of all those
displaced regardless of whether they have crossed an international border, is
still to be seen.
If internally displaced persons are just refugees who have
not managed to cross an international border, UNHCR is also increasingly
operating in-country with people who have not been forced to flee at all. It is
lead agency under the Dayton Peace Accords for Bosnia-Herzegovina. During the
conflict in Bosnia-Herzegovina, UNHCR had the so-called safe areas thrust upon
it.38 In those safe areas were internally displaced persons and the people
ordinarily resident in Gorazde, Srebrenica and Zepa, neither group within the
1950 mandate. The logic of in-country work ought to be, however, that it may
ameliorate potential refugee-producing conditions, or that it amounts to the
continued protection of refugees being repatriated. There may be a conflict of
interest, or at least additional competing pressures, where UNHCR is involved
with refugees in a neighbouring State and is simultaneously in overall charge of
restoring civil society in the country from which they have just fled. It is
worth reiterating, however, that UNHCR is not a general humanitarian relief
agency, but is, rather, motivated by its obligation to protect. Protection of
those of concern to the High Commissioner should motivate all UNHCR activities -
States should not impose other objectives on UNHCR for short-term ‘solutions’.
The problem is that UNHCR is never allowed to make mistakes in situations where
States are not even prepared to start answering the questions.
3. UNHCR and the International Law of Armed Conflict
Finally, and very briefly, during an armed conflict there are
rules of the international law of armed conflicts which affect UNHCR. The Fourth
Geneva Convention of 1949 Relative to the Protection of Civilians in Time of War
provides in Article 44 that Parties to the conflict shall not automatically
treat as enemy aliens refugees who do not enjoy the protection of a government.
Further, Article 26 provides that Parties shall facilitate the renewal of
contact where families have been dispersed. Geneva IV provides for relief to all
civilians in Articles 23, 55 and especially 59 and 61. Moreover, Protocols I and
II of 1977 deal with displacement39 and humanitarian relief with respect to all
those caught up in conflict. Protocol I, which applies to international armed
conflicts and wars of self-determination, provides that Parties to the conflict
should allow for the provision of humanitarian relief to civilians on an
impartial basis in a territory which is inadequately supplied - such should not
be seen as an interference or an unfriendly act. However, the parties to the
conflict can impose conditions on its passage as long as such would not result
in the starvation of the civilian population. Article 18.2 of Protocol II, which
applies to non-international armed conflicts, provides that the State Party to
the conflict, but not the rebel force, must consent, although in practice every
faction along the route the relief column will take will have a voice in the
distribution of relief.40 While these provisions are to be welcomed, it is not at
all clear in the international law of armed conflict that the fact that the
Parties to the conflict are obliged to permit something subject to conditions,
that that fact should give rise to rights in the individual victims, nor even
less that the ICRC and UNHCR thereby have a right to meet these needs of the
civilian population. A right of access to refugees in armed conflict, if such
exists in international law, is not readily discernible from Protocol I - the
best that might be divined is a right in UNHCR to offer relief action
4. Problems and Recommendations
In this section, issues are presented which go beyond the
simple law so far discussed.
- The first issue that needs to be addressed by governments concerns the
financing of UNHCR. It is insupportable for extra tasks and obligations to be
imposed on UNHCR without increased income. Moreover, if the work of the High
Commissioner is to be of an "entirely non-political character", as agreed by
States every five years in the General Assembly’s renewal of the mandate, then
financial security is an element of that independence.
- The use of safe areas during an acute crisis should not call into question
the obligation of other States to extend protection from refoulement to
those who fear persecution. A safe area should not be seen as giving rise to
the option of the Internal Flight Alternative for someone applying for refugee
status in Europe. Safe areas are a temporary solution to a problem and are
created to avoid fighting in those places, not to deal with mass movements.
- Is there a need for an express right of access to displaced persons in
time of acute crisis for UNHCR? While it might be a ‘paper right’, that it
exists may prove useful when trying to force recalcitrant States to grant
access, especially if backed up by diplomatic pressure. Failure to comply with
this putative might also be seen as threatening international peace and
security if the consequence is that the displaced would have no option but to
try and cross an international border.
- In the Great Lakes region, there were camps where those who had committed
genocide in Rwanda hid behind the human-shield of the thousands who had fled
the advancing army of the new Rwandan government. The international community
did little to resolve the crisis and left UNHCR and other agencies to deal
with the displaced. UNHCR ended up providing protection to war criminals and
genociders. It could have withdrawn and no-one can know how many who deserved
its protection would have died. UNHCR’s mandate is one of protection, not one
of international criminal law enforcement by direct or indirect means.
- Prevention is better than repatriation. Working to ameliorate the
conditions which give rise to the flow of refugees from potential acute crises
will be time and money well spent. That requires a human rights infrastructure for States which are in a pre- or
post-conflict situation.
