Table of Contents
Introduction
The state holds the primary responsibility to protect their citizen. However, when the government is unwilling or unable to protect their citizens, individuals may suffer a serious violation of their rights and they might be forced to leave their homes to seek safety elsewhere, as for instance another country.
This article seeks to provide readers with a comprehensive understanding of the refugee crisis. The relevant international legal framework. In particularly this article explores how the dual needs of securing security and the human right of refugees can be met.
According to article 1A (2), 1951 Convention Relating to the Status of Refugees, a refuge[1]is someone who
- Has a well-founded fear of persecution because of his/her: race, religion, nationality, membership in a particular social group, or political opinion
- Is outside his/her country of origin; and
- Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of prosecution
At the end of 2020, the United Nations High Commissioner for Refugees (UNHCR)[2]recorded some 82.4million people displaced worldwide, as a result of armed conflict or persecution, the highest in more than ten years.
Armed conflict and internal strife are widely considered to be major causes of population movement, within and outside borders[3].
The reason for internal, rather than external, displacement is numerous. According to Internal Displacement Monitoring Centre[4], 50.8 million people were living in internal displacement due to conflict, violence and disasters at the end of 2019. These figures show that internal displacement is a crisis of terrifying proportions.
Millions of people are forced to leave their homes or their habitual residence each year, also in the context of conflict, violence, development projects, disasters and climate change, and remain displaced within their countries of residence. Millions of more live-in situations of protracted displacement or are at chronic risk of displacement.
International humanitarian law protects
civilians from becoming internally displaced persons or refugees by expressly prohibiting forced displacement. The Guiding Principles on Internal Displacement[5] provide useful guidance on displacement-specific aspects. They have wide assist from the worldwide network and, and plenty of countries have included them in home laws.
The Guiding Principles on Internal Displacement (UN, 1998) establish the rights of internally displaced persons (IDPs) and the obligations of governments towards them in accordance with international law. The document emphasizes the primary responsibility of national authorities to protect and assist all internally displaced persons regardless of the reason for their displacement.
International humanitarian law and international refugee law share a similar goal: the protection of a person in the hand of a state of which they are not national. While international humanitarian law is mainly concerned with the protection of enemy nationals in the hand of an armed conflict, international refugee law seeks to protect individuals who have refuge from prosecution on the territory of a third country.
The Fourth Geneva Convention lays down explicit rules concerning the relationship between refugee and their host state on the one hand, and between refugee and their country of origin on the other hand. The specific protection afforded to refugees was subsequently extended by Protocol
Article 4 of the Fourth Geneva Convention second paragraph of the article state that— Persons protected by the Convention are those who at a given moment and, in any manner, whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Party to the conflict or Occupying Power of which they are not nationals.
The National of a state which is not bound by the convention is not protected by it. National of a neutral State who find themselves in the territory of a belligerent state, and national of a co-belligerent State, shall not be regarded as a protected person while the state of which they are national had diplomatic representation in the state in whose hands they are. Accordingly, refugee nationals of an enemy state on the territory of a belligerent are entitled as ‘protected persons’, to the full protection of the fourth Geneva convention.
Expansion of the protocol of refugee under Protocol I
Article 73 of Protocol I[6]eliminate the restriction contained in article 4 of the fourth convention. A refugee is protected whether or not diplomatic representation exist between the country. The fact that they have been recognised as refugee outweighs any consideration based on their nationality or their country of origin.
However, in order to benefit from the protection afforded to a protected person under Article 73 of Protocol I, two criteria must be fulfilled: –
First, they must have been considered as refugees under the relevant international or under the national legislation of the state of refuge or state of residence
Second, the extension of the protection offered by article 73 applies to refugees who have fled from prosecution or threat of prosecution
However, the refugee is in the hand of a power state not a party to the First Protocol, article 73 will not apply. In this case, the scope of protection granted by international humanitarian law to the refugee depends on his nationality and on whether he can be a protected person within the meaning of Article 4 of the Fourth Geneva Convention.
The Convention Relating to the Status of Refugees (1951) establishes minimum standards for the treatment of persons granted refugee status and prevails over the main international human rights mechanisms.
The 1951 Refugee Convention and Optional Protocol 1967
- Requires signatories to recognize those fleeing persecution as refugee
- Signatories must undertake measure to naturalize and assimilate refugee
- Signatories must provide refugee with basic service such as sustenance, shelter and medicine
- In the provision of service and rights (such as education) refugees must at least as favorable treatment as foreign national
- Signatories must make particular effort to help refugees participate in the workforce
- Refoulment is completely forbidden under the refugee convention
Protection of Refugee under International Human Rights
Article 14(1) of the Universal Declaration of Human Rights, considered the foundation of international human rights law and a key determiner of customary international law establishes that everyone has the right to seek asylum in other countries. This means that all people who fear persecution in one country have the right to asylum in another country.
It is important to note that the type of asylum[7] or legal status accorded to refugees is crucial to their future wellbeing, setting out the rights and obligations pertaining to people who have been forced to leave their country. Basically, it determines what kind of fundamental rights are guaranteed to them. It governs access to essential services such as health care and education; the right of movement within a host country; the right to residency; and the right to legal employment[8].
The principle of non-refoulment is of international law relating to refugees: outline refugee protection under international law non-refoulement as a starting point. It is considered both an inviolable part of international customary law and a key provision of the 1951 convention relating to the status of refugees. Non-refoulment [9]means nom-return: states cannot return foreign nationals to territories where they might be subjected to torture, inhumane or degrading treatment, or where their lives and freedom might be at risk
The principle of nom-refoulment reflects the commitment of the international community to ensure the enjoyment of basic human rights including the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment and liberty and security of person.
Article 33 of the Refugee Convention states that “No State Party shall expel or in any way return a refugee to the borders of a territory where his or her freedom of life would be threatened because of his race”.
Similarly, Article 3 of the Convention Against Torture state that “No State Party shall expel, return or extradite a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture.
The Refugee convention1951 preamble specifically requires the international community to cooperate, share burdens and aim to achieve a durable solution for refugees, who should be integrated into the economic system of the counties of asylum and will themselves provide for their own needs and for those of their families[10].
Also, Burden sharing [11]is the foundation principle of the international refugee regime. The United Nations High Commissioner for Refugees has defined burden-sharing as a subset of international cooperation where states take on responsibility for refugees who would strictly fall under the protection of other states.
Burden-sharing entails an approach toward refugee crisis that is underpinned by international solidarity and shared responsibility. The concept has its root in the common understanding that refugee is essential of concern to the entire international community, which has a common stake in issues of the humanitarian need of security.
Case study: Israeli settlement, the Separation Wall and Displacement in the Occupied Palestinian Territory
Palestinian refugees and internally displaced persons (IDPs) are the largest and longest-standing cases of displaced persons in the world[12]. At the end of 2008, there were an estimated 6.6 million Palestinian refugees and 427000 internally displaced Palestinian, representing 67 per cent of the entire Palestinian population worldwide.
Israel has been pursuing a policy of implantation of settlement in the west bank, the Gaza Strip and occupied East Jerusalem. The settlement has disastrous consequences for the Palestinian people. Their freedom of movement has been seriously affected. In the first ten months of 2008, the UN office for the coordination of Humanitarian Affairs (OCHA) recorded 290 settler-related incidents targeting Palestinian and their property which resulted in 131 Palestinian death or injuries[13].
The Geneva Convention of 1949 expressly prohibits the forced displacement of civilians and the subsequent displacement of the occupying power’s own population into the occupied territory. The prohibition of population transfers may also be derived from a fundamental principle of the law of belligerent occupation, namely the prohibition of a permanent change in occupied territory.
International law imposes a general ban on the acquisition of territory by force. The practice of population transfer by settlement clearly constitutes a breach of international human rights law, including the right to freedom of movement, the practice of non-discrimination and the right of self-determination.
The UN Security Council has repeatedly condemned attempts to alter the demographic composition of occupied territory and has consistently reaffirmed the applicability of the law of belligerent occupation, including the Fourth Convention.
Article 53 of the Fourth Geneva Convention prohibits the destruction, by the occupying power, of all property, real or personal, whether it is private property, state property or that of the public authorities. According to article 46 of the Hague Regulation, private property cannot be confiscated.
The International Court of Justice Advisory Opinion on Legal Consequences of the Construction wall in the Occupied Palestinian Territory
On October 9, 2003, the Permanent Representative of the Syrian Arab Republic, acting on behalf of the State Member of the League of Arab States, requested the President of the Security Council requests an immediate meeting of the Security Council to examine the serious violations of international law by Israel, including humanitarian law international law.
The Security Council meetings provided the parties concerned with a forum discussion on the construction of the Separation Wall and to discuss the root of the problem, namely the construction of Israeli settlement in the Occupied Palestinian Territory[14].
Israeli representative explained at length the reason why Israel felt compelled to build the security fence. Israel indicated that the fence was a temporary security measure and that it was one of the most effective non-violent methods of preventing the passage of terrorists from the Palestinian cities to civilian areas of Israel.
On 15 October 2003, the chairman of the Arab Group requested the resumption of the Tenth Emergency Special session of the General Assembly in view of the inability of the Security Council to fulfil its responsibilities for the maintenance of international peace and security due to the exercise of veto by its permanent member to address the serious problem of the Israeli expansion wall in the Palestinian occupied territories, including East Jerusalem[15].
The 10th Special Emergency Session of the General Assembly was then reconvened on 20 October 2003 and adopted Resolution ES10/13, calling on Israel to halt and reverse the construction of the wall in the occupied Palestinian territories, including in and around East Jerusalem.
On 24 November 2003, Secretary-General confirmed the non-compliance by Israel with the demands of resolution ES-10/14, requesting the International Court of Justice, pursuant to Article 65 of the Statue of the court, to urgently render Advisory Opinion[16]
On 9 July 2004, the ICJ rendered the advisory opinion, The court ruled, by fourteen votes to one that
The construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territories, including in and around East Jerusalem, and its associated regimes is in contravention of international law.
The Court then determined the relevant rules and principles of international law to assess the legality of the actions taken by Israel and ruled that the Hague Rules and the Fourth Convention, as well as some human rights instruments, apply to the occupied Palestinian territories.
The Court noted that the route of the wall was drawn to include the Israeli settlements in the “closed zone” and that the settlements themselves had been established in violation of international law.
The court observe that the construction of the wall resulted in the destruction or claim of property under conditions contrary to the requirements of Articles 46 and 52 of the Hague Rules and of Article 53 of the Fourth Geneva Convention.
Accordingly, the court found that the wall, along the chosen route, and its associated regimes seriously violated many rights of Palestinians living in Israeli-occupied territories. Furthermore, the court rejected Israel’s claim that the construction of the wall was consistent with the right of self-defence enshrined in Article 51 of the UN Charter, only concluding that Article 51 was irrelevant in this case.
Court then examined the consequences of that violation. Firstly, Israel has an obligation to put an end to the violations flowing from the construction of the Wall in occupied Palestinian Territory. Secondly to make reparation for the damage suffered, further Israel obligation to comply with international humanitarian law.
Conclusion
Human right violation is a major factor in causing the flight of refugees as well as an obstacle to their safe and voluntary return home. International Human Right law constitute a comprehensive corpus of protection for refugee and other displaced persons. It adequately protects civilians from forced displaced persons in situations of occupation and non-international armed conflict. The rules of humanitarian law govern the conduct of hostilities, including the fundamental principle of civilian immunity, provide adequate safeguard against an armed attack by belligerents.
The function of the international human right is to judge whether states are fulfilling their duties under internationally agreed human rights norms. International human rights standard and norms derive their validity and binding nature from treaties, as a matter of international law, a State owes its legal obligation to other state parties to the treaty
Human rights instruments envisaged a broader range of rights than those found in international refugee law instruments. Moreover, even when certain right is protected under two branches of international law, those right protected under human right instrument are generally more widely applicable.
This Article is written by,
Author Rahul Matharu student at Law Centre-2, Delhi University, 3 Year.
Co-Author Sahil Choudhry student at Law Centre-2, Delhi University, 3 Year
[1] The concept of Refugee, Asylum Seeker and Migrant have distinct connotation. Asylum seeker is a general term for a person who has not yet received a decision on his/her claim for refugee status. Also, to main difference between migrant and refugee is that, unlike migrant, refugee do not choose to leave their country; they are forced to do so
[2]United Nation High Commissioner for Refugees (UNHCR), Global overview, https://www.unhcr.org/flagship-reports/globaltrends
[3]In 1 1992 report, the secretary-general on Internally Displaced identified ‘armed conflict and internal strife’ as a major cause of displacement
[4]https://www.internal-displacement.org/internal-displacement
[5]https://www.internal-displacement.org/publications/ocha-guiding-principles-on-internal-displacement
[6]https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=319C8D02127ADAD2C12563CD0051E004
[7]Asylum is understood as the protection that a state grant on its territory or in some other place under the control of certain of its organs to a person who comes to seek it
[8]DJ Whittaker, Asylum Seeker and Refugee in the Contemporary world, London, Routledge, 2008
[9]Non-refoulment and the scope of its application -https://www.unhcr.org/4d9486929.pdf
[10]The Refugee Convention 1951, Preamble, Paragraph 4
[11]Burden sharing is a form of international co-operation where the state agree to implement measure sharing the responsibility of offering protection and asylum
[12]BADIL Resource Centre for Palestinian Residency and Refugee Rights, Survey of Palestinian
Refugees and Internally Displaced Persons 2008–2009 (December 2009), www.badil.org/index.
[13]UNCHR, ‘Question of the violation of human rights in the Occupied Arab Territories’ (6 March 2002), para. 25; Al-Haq, ‘Waiting for justice: Al-Haq’s 25th Anniversary Report’ (2005), http://asp.alhaq.org/zalhaq/site/books/files/Annual%20Report%20Combo.pdf (accessed 18 May 2011)
[14] 4841 meeting of the Security Council, 14 October 2003, 10:30 a.m.
[15] Letter dated 15 October 2003 from the Permanent Representative of the Syrian Arab Republic to the United Nation addressed to the President of the General Assembly
[16]UNGA, Report of the Secretary-General Prepared pursuant to General Assembly Resolution ES-10/13
