|Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)|
|International Humanitarian Law and the Law of Refugees and Internally Displaced Persons|
|II. The Inadequacy of International Refugee Law in Situations of Armed Conflict|
It is a well known fact to any international lawyer that victims of armed conflicts are, as such, excluded from the coverage of the refugee definition of the 1951 Refugee Convention whereas they are included in the pertinent definitions provided for the in regional refugee law applicable in Africa and Latin America. It is also well known that, notwithstanding this normative fact, pragmatic solutions have been adopted, both in international and domestic law, with a view to accord at least some degree of - protection to refugees from situations of armed conflicts.
a) The Exclusion of Victims of Armed Conflicts Under the Refugee Definition of the 1951 Refugee Convention
aa) The question as to whether the refugee definition as laid down in Art. 1 A of the 1951 Refugee Convention adequately serves the needs of persons forced to leave their home countries in order to escape from persecution ought to be modified in order to better match the profoundly changed patterns of forced trans-boundary movements of persons constitutes a key issue of the refugee law related debating of the last decades. In this context, it is interesting to note that the only normative change of this definition, i.e. the removal of the temporal and geographic limitations contained in Art. 1 A (2) and B of the 1951 Refugee Convention by virtue of Art. I of the 1967 Protocol Relating to the Status of Refugees, concurred with the drafting of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa which was eventually adopted in 1969. This 1969 OAU Refugee Convention clearly reflected the new dimensions of the refugee issue, in particular by expanding the refugee definition beyond the scope of the universally applicable 1951/1967 refugee definition. A similar approach resulted in the similarly extended refugee definition of the 1984 Cartagena Declaration.
Since then, considerable efforts have been made with a view to convincing States outside Africa and Latin America to apply - at least within their domestic legal orders - such an expanded definition; although it must be emphasized that - at least for some periods of time some States admitted persons not covered by the 1951/1967 refugee definition, such action was either based upon strictly humanitarian grounds without such States accepting any pertinent legal obligation, or upon specific legal provisions. More recently, however, the ever increasing numbers of persons seeking refuge from situations characterized by (civil) war and/or massive violations of human rights prompted many industrialized States to resort to legal and political actions with a view "co stem the flood". Such actions may be either preventive or repressive: to the former belong, inter alia, the recent however still inconsistent - practice of the UN Security Council to deem situations likely to result in large-scale trans-boundary movements of persons as a "threat to peace" and, thus, justifying actions under Chapter VII of the UN Charter; the increasing emphasis placed upon international co-operation in order to prevent States from conducting refugee-generating policies; and the renaissance of the concept to make financial and other assistance to a State contingent upon such State's human rights record. Among the repressive actions could be mentioned the increased efforts to implement international programmes of durable solutions such as resettlement in the region of the refugees country of origin and voluntary repatriation; and in particular the far-reaching changes in national asylum law and practice encompassing, in particular, the introduction of concepts such as safe countries of origin and safe countries of first asylum. Not with standing the recent decrease in the numbers of asylum applications resulting from such actions, the effects of the wars in the former Yugoslavia showed, in the European context, the very limited possibilities of such measures: although the national asylum laws of practically all European States exclude persons from the former Yugoslavia (irrespective of whether they originate from any of the war-stricken areas or have left their countries of origin in order to escape from being drafted into the armed forces of any of the belligerent parties) from being admitted as refugees in a strictly legal sense, most European States - to an admittedly quite varying degree - "tolerate" the, however, temporal or provisional presence of such persons upon strictly humanitarian grounds". From a legal point of view, such policies might be described as an implementation of the concept of temporary protection (or refuge) which in recent years has become one of the more "promising" topics of the universal refugee law debate.
bb) Notwithstanding such recent developments on the international and domestic level, it must be emphasized that the 1951/1967 refugee definition still constitutes the most important legal basis for international and national refugee law: firstly, more than two thirds of the world's States are parties to the relevant treaties; and, secondly, it might well be argued that the remaining States are also legally bound to respect this definition as constituting customary international law; thirdly, this definition forms, either explicitly or implicitly, part of (almost) all national asylum laws which have either incorporated the Convention system into their domestic legal orders or have based their relevant legislation upon it.
Within the framework of this paper, it is not necessary to embark upon a detailed presentation of the contents of the 1951/1967 refugee definition. Suffice to recall here that it is focused on a well-founded fear of persecution due to one of five specific grounds (race, religion, nationality, membership of a particular social group or political opinion). Various well known problems of interpretation arise from this definition, e.g. the question as to whether the "well-foundedness" of an individual's fear of persecution is to be determined upon the basis of objective and/or subjective criteria;9 to what extent persecution directed against other members of the same group justifies other persons' fear of being persecuted themselves; and how these grounds for persecution are to be interpreted.
Notwithstanding such interpretative issues, the most important problem connected with this refugee definition for the subject of this paper is a structural one: although the 1951 Refugee Convention was primarily drafted with a view to protect future victims of generalized persecution as had taken place in Nazi dominated Europe, and although it was applied by Western States during most of the Cold War era with a considerable amount of "generosity" in relation to persons originating from the then socialist countries, the 1951/1967 refugee definition has been predominantly seen as being based upon the concept of individualized persecution and, thus, excluding the notion of group persecution. This concept of individualized persecution necessarily fails to address the new patterns of forced migration which have become, since the early 1960s, the predominant feature of involuntary trans-boundary movements of persons: whatever their cause (struggle against colonialism, foreign domination, civil strife and civil war, general breakdown of public order, gross and persistent violations of fundamental human rights) - States could and can justifiably argue that persons compelled to leave their home countries in order to escape from such situations need not be recognized as refugees in the sense of the 1951/1967 definition.
Thus, as long as this concept of individualized persecution prevails and States are not prepared to expand the 1951/1967 definition with a view to include victims of armed conflicts, such persons are not entitled, under international law, to the benefits of the protection machinery established under the 1951 Refugee Convention. Since for a variety of reasons, some of which will be addressed in the subsequent part of this paper, there does not seem to exist, at least not for the foreseeable future, any well-founded hope as regards a possible change of the basic attitude of States in respect of these two issues, "pragmatic" solutions seem to offer the only viable way of bringing about a substantial alleviation in the humanitarian crisis faced by such persons.
b) The Inclusion of Victims of Armed Conflicts under the Refugee Definitions of the 1969 OAU Convention and the 1984 Cartagena Declaration
a) The aforementioned new patterns of coerced trans-boundary movements resulted in efforts to expand the universally applicable refugee definition. Since, at least in the 1960s, most of such situations occurred in Africa where, moreover, the newly independent States were simply not in a position to establish the administrative structures necessary to conduct individualized recognition procedures in cases of massive influxes of refugees, African leaders soon understood the need to expand the traditional refugee definition. Thus, the 1969 OAU Refugee Convention, while building upon the 1951/1967 Convention definition by incorporating it into its Art. I (1), added in Art. I (2) a new category of refugees, namely victims of external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of the country of origin.
Although the civil wars fought in Central America since the early 1970s resulted in similar phenomena, it took more than a decade until ten Latin American States adopted the 1984 Cartagena Declaration which was approved by the OAS General Assembly in 1985. It includes a refugee definition which shares most of the innovative concepts of the 1969 OAU Convention. The major differences seem to be that the Cartagena definition might be interpreted as, firstly, excluding such persons who might find refuge in another region of their home country (the so-called concept of alternative refuge considered to be inherent to the 1951 Convention system) and, secondly, requiring an objectively demonstrable risk for threats to life, safety, or freedom whereas the 1969 OAU Convention seems to emphasize the refugee's subjective perception; all other textual differences do not seem to entail any practical differences. A final point to be mentioned concerns the legal status of the 1984 Cartagena Declaration: unlike the 1969 OAU Convention, it does not have the quality of binding treaty law. Nonetheless, it seems justified to state that both documents reflect regional customary international law. Thus, in two of the most refugee-stricken regions of the world, the universally applicable refugee law as enshrined in the 1951/1967 Convention system is supplemented by further-reaching regional law specifically drafted to adequately cope with the existing refugee situations by, inter alia, explicitly including victims of armed conflicts as eligible for recognition as refugees.
b) The absence of any such regional refugee law in other parts of the world may be explained by several reasons. Asia, the third continent with a long history of large-scale trans-boundary movements of victims of armed conflicts, lacks one essential formal precondition: the existence of any regional organisation capable of drafting the necessary legal instrument.
As regards Europe and Oceania, the following reasons might be relevant whereas the Council of Europe provides the necessary forum to draft such a document, there was - and still is - a lack of sufficient political will to embark upon such an endeavour. One reason might be that Europe - with the exception of Turkey - did not know of refugee situations which necessitated expanding the 1951/1967 refugee definition m order to assist and protect persons originating from European' countries; notwithstanding the wars in the former Yugoslavia and prospects of a further deterioration of the situation in Russia and other successor States of the former Soviet Union, it remains most doubtful whether these factors will result in a change of the existing political climate. The second reason might be that European States were and are unwilling to accept such an expanded refugee definition for fear of "attracting" even larger numbers of asylum-seekers from non-European countries not covered by the 1951/1967 definition; if European States were and are at all prepared to accord some legal status to such persons, they preferred to do so on the basis of - more easily adaptable - domestic legislation which to a large extent seems to reflect a (partial) implementation of policies influenced by the concept of temporary protection.
As regards Oceania, it must be stressed that there exists neither the appropriate institutional framework to draft such a regional instrument nor does there seem to be sufficient practical need to do so: so far, this region has been spared from the occurrence of both large-scale refugee-generating situations and, due to geographical reasons, from massive refugee movements from outside the region.
c) Pragmatic Solutions in the Practice of UNHCR
In view of these mainly political circumstances, the only viable approach to improve the situation of victims of armed conflicts consists in developing pragmatic solutions, i.e. solutions short of drafting legally binding treaty law. Such an approach is well reflected in the recent Note on International Protection submitted by the UN High Commissioner for Refugees to the UNHCR EXCOM on 7 September 1994 which focuses, inter alia, on the concept of temporary protection.
a) The fundamental conceptual importance of this Note results from its basic approach to emphasize the need for protection as the key to the identification of persons as refugees and as persons of concern to UNHCR and to the international community. Referring to the wording of the Preamble to the 1951 Refugee Convention, it is stressed that the overall objective of international protection is [...] to assure refugees the widest possible exercise of [..] fundamental rights and freedoms [...]" Thus, international protection is premised upon human rights principles and is to be provided by the international community as a whole as refugees do not enjoy the effective protection of their own government; to some extent, international protection thus serves as a substitute for national protection.
In the context of this paper, particular attention must be attached to those parts of the Note in which the High Commissioner deals with, on the one hand, identifying the gaps between the coverage of international instruments and the categories of persons actually in need of international protection, and, on the other hand, exploring the ways and means of bridging such gaps.
The fundamental problem of contemporary refugee law relates to those persons who objectively need international protection but do not qualify as "refugees" under the 1951/1967 Convention system or are denied recognition due to a "narrow" interpretation of the refugee definition. To be emphasized, in this context, is the obvious correctness of the conclusion that
"[...] the lack of a complete correspondence between the categories of persons covered by the 1951 Convention and the 1967 Protocol and the broader class of persons in need of international protection is not simply a matter of a ¿'road or narrow interpretation of the elements of the refugee definition, nor of the difficulty of applying the 1951 Convention in situations of large-scale influx. However liberally its terms are applied, some refugees fleeing the civil wars and other forms of armed conflict fall outside the letter of the Convention. Although many refugees from armed conflict do have reason to fear some form of persecution on ethnic, religious, social or political grounds at the hands of one or more parties to a conflict, others typically are fleeing the indiscriminate effects of armed conflict and the accompanying disorder, including the destruction of homes, harvests, food stocks and the means of subsistence, with no specific element of persecution [...]".
The Note continues by describing the efforts to bridge this gap between the need for international protection and the inherent limitations of the 1951/1967 Convention system; such efforts involved, in particular, a broadened UNHCR mandate combined with reliance on regional instruments such as the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration, other international instruments, customary international law, and ad hoc-arrangements relying on the humanitarian policies of governments. This section concludes by realistically stating that although these efforts have in practice yielded considerable success, there remains the problem that, outside the reach of regional treaty law or customary international law, such protection depends on the continuing goodwill of governments. In this context, it is rightly observed that, despite the generosity shown by most countries, such goodwill is not necessarily permanent or stable, and can be unduly swayed by the vagaries of public opinion; moreover, such generosity is often inconsistently applied because, due to political considerations, persons fleeing from situations of armed conflict in one country may benefit from (temporary) asylum accorded ex gratia while others, fleeing from a very similar situation another country, are denied such protection.
Thus, ways need to be found in order to guarantee effective international protection for all those who require it, irrespective of whether they come within the scope of the treaty obligations of individual governments. In this context, the Note states quite realistically that
"[...] while regional legal instruments may appear to show the way,hopes of widening the scope of international instruments to cover refugees beyond those provided for in the 1951 Convention and the 1967 Protocol are confronted with the reluctance of many States to undertake internationally legal binding obligations towards refugees beyond those that they have already assumed [...]''.
In this situation, the High Commissioner, while insisting on her preference for establishing global or regional conventions for the protection of refugees in the broader sense, proposes a more pragmatic approach based upon the experiences with the 1984 Cartagena Declaration, i.e. to draft a declaration of guiding principles for international protection on a global and/or regional level, complemented by regional and/or global harmonisation processes recommending and leading to the adoption of parallel national legislation, and co-ordinated ad hoc-international responses to specific refugee situations. In this context, the key notion should be the concept of temporary protection.
And indeed: in view of the current political and social reality in most of those countries of refuge which do not rely on international assistance in meeting the financial and other needs of persons not covered by the 1951/1967 refugee definition, this approach seems to be the only realistic one. Whether one likes it or not: hoping for the legislative and executive organs of Western countries to assume further internationally binding legal obligations in respect of such persons is and most probably will remain so for quite some time to come - nothing but wishful thinking.
b) This leads to the concept of temporary protection which, in the Note, is explicitly said to be based upon the experiences gained in the context of providing assistance to the victims of the armed conflicts and systematic human rights abuses in the former Yugoslavia; from a legal point of view, it constitutes a further development of the concept of temporary refuge applied, under different denominations, in various countries since the mid-1970s in order to provide some kind of assistance and protection to persons not eligible for refugee status under the 1951/1967 Convention system. The major aspects of temporary protection are identified as follows: (1) " [...] its use as a tool to meet protection needs in mass outflows [...]"; (2) the the definition of beneficiaries on the basis of the need for international protection [...]"; (3) " [...] the description of the basic elements of protection [...]" (4) " [...] the focus on return as the most appropriate solution [...]; and (5) "[...] the provision of international protection as part of a comprehensive programme of concerted international action that includes prevention and solution [...]. Moreover, as temporary protection is conceived of as an emergency measure for only short duration, it does include respect for basic human rights, but its beneficiaries will be offered a more limited range of rights than would customarily be accorded to refugees under the 1951/1967 Convention system.
Temporary protection would be offered to all persons who have fled from areas affected by armed conflict and violence; who had been or would be exposed to human rights abuses including victims of ethnic cleansing; and who for other reasons specific to their personal situation are presumed to be in need of international protection. In practical terms, this definition encompasses all those who are covered by the expanded refugee definitions of the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration. It should be emphasized, moreover, that beneficiaries of temporary protection include both persons who clearly qualify as refugees under the 1951/1967 Convention system and others who do not.
The basic elements of temporary protection include, in particular, admission to safety in the country of refuge; respect for basic human rights including treatment in accordance with internationally recognized humanitarian standards; protection against refoulement; and repatriation when conditions in the country of origin so allow. Obviously, this description of the basic elements of temporary protection does not entail any problems if voluntary repatriation can be implemented within a short period of time. Recent experience shows, however, that this is often not the case: if it is true that the concept of temporary protection has been developed in particular in the context of the wars in the former Yugoslavia, it must be stressed that the experiences shared by those European countries that admitted persons from that area under this concept may be doubted to have contributed to strengthening their future preparedness to do so again: suffice to mention the shocking lack of political will to effectively implement the provisions of the so-called Vance-Agreement concerning the Croatian areas not controlled by the Croatian government; if its provisions, in particular those providing for the establishment of conditions necessary for the return of the non-Serbian population of those areas and those aimed at preventing further acts of ethnic cleansing, had been implemented as envisaged in this agreement, a very large number of persons who were (or - as regards former inhabitants of Eastern Slavonia - still are) outside Croatia as beneficiaries of temporary protection measures could have justifiably expected to have returned to their homes. In other words: how can the international community press governments to admit persons in need of temporary protection, if it so clearly fails to show that it is at least sincerely willing to adopt those measures which are necessary in order to ensure that such temporary protection does not turn into a "durable solution"? This, however, leads to the broader issue of international action in favour of refugees from situations of armed action which will be dealt with elsewhere in this paper.
c) In summary, it must be said that the concept of temporary protection as presented in the aforementioned 1994 UNHCR Note an International Protection in principle offers a viable solution to the obvious protection needs of persons not qualifying as refugees under the 1951/1967 Convention system outside Africa and Latin America, in particular those fleeing from situations of armed conflict. However, from a legal point of view, this concept urgently needs some clarification as to the extent of rights to be accorded and the treatment to be applied to such temporarily protected persons. With a view to the approach suggested in order to convince States to apply this concept, i.e. to make it the subject of a legally non-binding declaration of guiding principles as long as States are not willing to assume additional legal obligations, it is important to strengthen the political will to eventually make - less selective and much more efficient - use of the possibilities offered by international law, in particular by the UN Charter, as to the prevention of refugee-generating situations and the implementation of programmes of voluntary repatriation, both sponsored and supervised by the competent international bodies.
d) Pragmatic Solutions in Domestic Law and Practice
Within the framework of this paper, it is not possible to embark upon a detailed analysis of the "pragmatic" solutions adopted in the various domestic legal systems in order to accord some sort of protection to persons who do not qualify as refugees under the different national asylum laws reflecting the 1951/1967 refugee definition, in particular as regards persons having escaped from situations of armed conflicts. Suffice to mention, therefore, that already in the 1970s some countries outside Africa and Latin America introduced into their relevant legislation a specific category of refugees (with, however, somewhat lesser status as compared to " Convention Refugees") in order to temporarily admit, upon a legal basis, such persons; most countries, however, only tolerated the presence of such persons upon strictly humanitarian grounds, often on the basis of administrative guidelines or instructions.
In recent years, however, at least most Western European States began, as a reaction to the wars in the former Yugoslavia, to enact specific provisions with a view to establish a legal basis for the (temporary) admission of refugees from situations of civil wars; generally speaking, such provisions may be considered as being in line with the contents of the concept of temporary protection as spelled out in the 1994 UNHCR Note on International Protection mentioned above. Thus, e.g. Germany recently introduced into its Aliens Act a provision (§ 32 a Aliens Act) under which the Federal and the Lander Ministers of the Interior may agree to generally accord to all persons seeking refuge from a specific situation of war or civil war a temporally limited (usually six months with the possibility for further prolongations) Aufenthaltsbefugnis. Such specific residence permits may be geographically restricted to the territory of a Land or even a municipality where the person concerned will have to reside while staying in Germany. This, however, does not limit such persons' right to travel within the country. Moreover, such persons are entitled to take up gainful employment and are issued a specific document stating their residence status if they do not hold any valid passport. As all aliens lawfully staying in Germany, they are also entitled to receive social aid and other welfare benefits. Although it is obvious that such status, due to its strictly provisional character and the uncertainties resulting therefrom, causes considerable mental hardship and, moreover, provides fewer rights than the status of asylee or "Convention Refugee", it might be considered as an appropriate legal response to the most urgent (protection) needs of the persons concerned.