International Refugee Law and International Humanitarian Law: Regime Interaction and Overlap

There are predominantly three major incidents which lead to the mass movement of refugees: gross human rights violations, wars, and natural disasters.¹ In 2019, more than two-thirds of all refugees came from five countries: Syria, Venezuela, Afghanistan, South Sudan, and Myanmar. All of which involve either war or gross human rights violations. Most refugee crises in modern history have arisen from war and conflict, and while both, International Refugee Law and International Humanitarian Law seek to protect human dignity, the means by which they do so varies substantially. The article analyzes the protection of refugees offered under International Refugee Law and International Humanitarian Law and assesses the ways in which these regimes interact, overlap, and complement each other.

International Refugee Law

A refugee, according to the 1951 Geneva Convention, is someone 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 to, or owing to such fear, is unwilling to avail himself of the protection of that country.” If they satisfy the criteria, they are entitled to the rights set out under the Convention (and its 1967 Protocol which removes the geographical and temporal restrictions of the 1951 Convention).²

Mass movements to escape persecution, like the expulsion of Jews from Spain in the late 15^th century, have existed throughout history. Modern refugee law can be traced back to the repercussions of World War II where the United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organisation (IRO) helped refugees. But, besides the relevant instruments of 1933 League of Nations Covenant and 1938 convention, there was no coherent framework guaranteeing refugees protection. The establishment of UNHCR (1950) and the Geneva Convention in 1951 were adopted to coin a coherent definition for “refugees”, however, due to temporal and geographical limits, the 1967 protocol was formed, it was more inclusive and excluded such restrictions for signatories. An individual must fall within one of the stipulated categories and also be persecuted. A refugee is without protection of their state, which under Public International Law and the Westphalian system, is responsible for that citizen. Refugees are therefore vulnerable which is why they are accorded protection under this regime of law.

International Humanitarian Law

International Humanitarian Law (IHL) is a set of rules which seek to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. The law applies only once a conflict has begun, equally to all sides regardless of who was the initiator.³ The application of IHL is triggered by the existence of an international or non-international armed conflict. IHL’s application in a non-international armed conflict is contingent on the type of violence, its duration, and the degree of organization of the parties to the conflict.

A major part of IHL is contained in the four Geneva Conventions of 1949 which have been developed and supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts.⁴ The protection afforded by the Geneva Conventions and the Additional Protocols is extensive. However, it is observed that more often than not, the rules of IHL are not conformed to and civilians continue to suffer despite its legal protections.⁵

IHL and IRL interaction

Scope of Application

One similarity between the two legal frameworks is that they both represent a compromise. IHL is essentially a middle ground between balancing military necessity and humanity. Whereas, IRL is a compromise to balance the rights of refugees and the obligations that states have to take up against said State’s sovereignty.

Both IHL and IRL are state obligations rather than individual rights and the implementation of both legal frameworks is heavily reliant on whether the conflict is taking place externally or internally. While the protection of refugees has its roots in conflict, owing to events like WWII which led to the creation of the Refugee Convention, the doctrine itself offers limited protection to persons fleeing conflict, specifically to those who have been displaced. Similarly, with IHL, the protection granted greatly depends on whether a person finds themselves in the territory of a state party to the conflict or of a non-belligerent State or in the hands of opposing states or parties to the conflict. The 1967 Protocol removed the temporal restriction on the applicability of the Refugee Convention, but IHL remains temporally and geographically constrained to the zone of hostilities and for the duration of an armed conflict.⁶

Definition of a Refugee

The definition of the term “refugee” which is contained in Article 1A (2) of the 1951 Convention does not include an individual who is fleeing from an armed conflict. For instance, the 1951 convention does not classify generalized violence as one of the grounds for “well-founded fear of persecution”. Even so, states have interpreted armed conflicts and other situations of violence as a form of persecution. IHL complements International Refugee Law (IRL) such that violating IHL may form a substantial basis for persecution or fear of persecution. UNHCR acknowledges that: “If someone is forced to flee an armed conflict in their country because of human rights violations and breaches of humanitarian law, these factors will be part of what determines that person’s refugee status”.⁷

The issue remains, however, that generalized violence traditionally entails that the violence is untargeted hence indiscriminatory, which cannot be “a well-founded fear of persecution”. The definition of “refugee” should be revised because recent events like the Taliban takeover, Ukraine-Russia War, and the Kashmir Conflict show that the framework falls short of a careful analysis that these complex situations necessitate.⁸ The definition of the term “refugee” clearly needs to be expanded. Most refugees are simply fleeing violence as their home is no longer safe and has become a war zone. People fleeing armed conflict and other situations of violence may qualify as 1951 Convention refugees, though just the fact that they have had to flee from conflict and violence is not sufficient.⁹ Concerningly, the vast majority of those seeking shelter from violence are not, as far as the Convention is concerned, refugees.¹⁰

Protection of refugees under IHL

Refugees are to a great extent sufficiently protected by IRL, and to a reasonable extent, by IHL as well. IHL distinguishes between civilians and combatants, protecting the former from attack and the latter from punishments or sanctions for violating domestic laws (‘combatant immunity’). Certain protections are accorded to those ‘no longer taking direct part in hostilities’ (hors de combat). IHL offers heightened protection, including from displacement to those who qualify as ‘protected persons’. For instance, Customary IHL Rule 129, titled “The Act of Displacement”, provides that Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand. However, IHL provides limited protection to groups deemed particularly vulnerable, such as refugees and those in refugee-like situations. IHL operates on the rebuttable assumption that individuals can and will enjoy their state’s protection during an armed conflict: nationals of a State held by that State are ineligible for ‘protected persons’¹¹ status, and, when held by other States, they are considered to bear allegiance to their State, absent exceptional circumstances.¹² IHL is contingent upon one’s nationality, rather than an international border. Even the definition of “protected person” is provisional on the notions of nationality. While this may have changed following the International Criminal Tribunal for the Former Yugoslavia’s Tadic judgment, which instead focused on allegiance rather than nationality, many protections still continue to apply on the basis of nationality.¹³

Besides the general protection afforded to civilians by IHL, refugees are given special protection under the Fourth Geneva Convention and Additional Protocol I. For instance, Article 44 of the Fourth Geneva Convention specifies that Detaining Powers should not treat as enemy aliens, refugees who do not, in fact, enjoy the protection of any government. Article 73 of Additional Protocol I state that refugees must be regarded as protected persons in all circumstances and without any adverse distinction.¹⁴

Obligations of Repatriation of Protected Persons and End of Refugee Status

Article 45 of the 1949 Geneva Convention IV¹⁵ provides that protected persons are to be repatriated after the cessation of hostilities. This seemingly complements Article 1.C¹⁶ of the Refugee Convention which stipulates that refugees will be repatriated once there is a fundamental change in circumstances in their ‘home’ state, which allows them to return safely.

However, as with ‘cessation of hostilities’ the notion of what constitutes a ‘fundamental change in circumstances’ has not been adequately defined. UNHCR Guidelines note the general considerations under which decisions of cessation should be made stating that they should not result in persons residing in a host State having an uncertain status, or being compelled to return to a volatile situation.¹⁷ Refugees should not face involuntary return to situations that might again produce flight and a need for refugee status. Conditions in the country of origin must have changed in a profound and enduring manner before cessation applies. However, it has been argued that some courts have applied too low a threshold for cessation of status on these grounds, often conflating it with a mere requirement that there no longer be a well-founded fear of persecution. The term itself even with the guidelines remains too vague and ambiguous and needs further clarification as well as criteria which set out clearly what constitutes a fundamental change in circumstances. Similarly, under IHL, it is not clear when there is a ‘cessation of hostilities’ and whether this requires a peace agreement or a lack of violence on the ground for there to be repatriation of protected persons.

Conclusion

IHL and IRL are separate legal frameworks that aim, in their own way, to protect those affected by conflict. While IHL concerns all persons affected by conflict (including combatants, IDPs, refugees, etc), IRL is specifically designed to offer protection to refugees. These two frameworks often overlap because armed conflict and violence activates the application of IHL, and such situations often result in mass movements of refugees. It should be appreciated that both IHL and IRL offer a comprehensive structure aimed at protecting those groups of people that are perhaps the most vulnerable. Most displacements, whether externally or internally, are as a result of violence and armed conflict. Most refugee movements, such as the Syrian Refugee Crisis, are a result of armed conflict. Reprehensibly, however, major conflicts around the world have tripled since 2010, which means that more people than ever are at risk due to armed conflict and the violence that ensues. The mismanagement of refugees at international borders reflects a lack of interest as well as hesitation from states. Moreover, it illustrates that there is a dire need to improve the current instruments created for the protection of such individuals. One of the most crucial steps that can be taken would be by broadening the definition of ‘refugee’ by bringing it in line with the Cartagena Declaration and OAU. Furthermore, both doctrines should clarify when they cease to apply, namely when an individual is no longer a refugee or when civilians can be repatriated. Doing so would ensure that both regimes continue to protect those most vulnerable in times of an armed conflict.

Eman Amad

Eman Amad is a lawyer with a keen interest in international law within the context of contemporary international security issues.