International Humanitarian Law
Hitherto, individuals or groups who are fleeing situations of generalized violence, civil conflict, man-made disasters and so forth, have not generally acquired refugee status under the RC. Nevertheless, IHL can be of particular use in the refugee context, providing additional protection for civilians in times of war. IHL draws the line between acceptable and unacceptable behaviour during a given conflict. If a particular action is taken and violates IHL, then any particular individual violated by the said behaviour need not establish a personal risk under IRL in order to receive protection. However, if the said behaviour affects an individual in a negative manner and yet the action taken is not in violation of IHL, then the individual will need to establish how they were personally at risk.
The critical question is whether victims of war ought to be considered as refugees. According to the UNHCR, there is nothing in the RC that precludes victims of war from acquiring refugee status, provided that they demonstrate a "well-founded fear" based upon one of the five Convention grounds. Those individuals who are fleeing persecution in times of war, but are unable to link their persecution with one of the five Convention grounds, must rely upon the protection afforded to civilian non-combatants in the Geneva Conventions and Protocols I and II. In their Handbook on Procedures and Criteria for Determining Refugee Status, the UNHCR stipulate, in paragraph 164, that:
Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.22 They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Geneva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts.
The Handbook then qualifies this provision with reference to "special cases", thereby highlighting their exceptionality.
If it is determined that such a claimant does not face differential victimization on the basis of one of the five Convention grounds, they must rely upon a state's humanitarian considerations and other forms of extra-conventional protections against refoulement. Such protection is, however, much more limited than that afforded under the RC; is dependent upon a state's good will; and is usually intended to be temporary.
Differential risk approach
Several states apparently fear that by providing for refugee status on the basis of armed conflict or generalized violence, the floodgates will be opened. Speaking against making the RC applicable to situations of armed conflict and generalized violence, the SCC in Isa v. S.C.C. argued that :
Many if not most, civil war situations are racially or ethnically based. If racially motivated attacks in civil war circumstances constitute a ground for Convention refugee status, then all individuals on either side of the conflict will qualify.
This decision implies that an applicant must emphasize their subjective fear, as opposed to the objective conditions leading to their flight. In other words, they must prove that they are at a greater risk when compared with the risks that all other citizens face on account of the armed conflict or civil war. The presumption made in the above decision of the SCC is that there can be no differential risk if the political, racial, religious, national, or other motivation for the harm simply arises out of the conflict itself.
This approach results in the paradoxical situation that while it is accepted that many civil wars are fought for discriminatory motives, the persecution that results is too indiscriminate to amount to "persecution" within the meaning of the RC. Moreover, it implies the doubtful assertion that it is not persecution if it affects a broad group of people.
A balanced approach
The shortcomings of these restrictive approaches can be overcome by paying greater attention to the principles of IHL. Reference to IHL is explicit in Article 1(F) of the RC, in regards to exclusion clauses however IHL is rarely referred to in regards to the inclusion clauses in the RC.
Attention to IHL norms within refugee status determination procedures requires that decision-makers examine the objective situation in the country of origin so as to determine from which sort of conflict the individual or group is fleeing. Decision-makers would be obliged to apply the principles of IHL to government forces and belligerent groups alike. IHL makes a five-fold classification of armed conflict under which different norms apply depending upon the nature of the conflict. The five categories are: (1) traditional armed conflict, defined in common Article 2 of the Geneva Conventions; (2) those conflicts waged in the context of racist and/or colonial regimes and alien occupation, as defined in Article 1(4) of the Additional Protocol I of 1977; (3) those conflicts between a state and organized armed groups under responsible command and who have control over a territory, as defined in Additional Protocol II; (4) those conflicts falling under common Article 3 of the Geneva Conventions, referring to non-international conflicts, and ; (5) riots, internal disorder, and tensions subject to national laws and minimal international law standards. The latter category marks the threshold below which common Article 3 does not apply because the level of internal violence is too low.
When faced with making a determination regarding the nature of the internal conflict, decision-makers are required to examine the conditions in the country of origin on a case-by-case basis. In this case, IHL may provide greater protection to the extent that a wide range of IHL norms enjoy the status of non-derogable norms. In contrast, a list of similar norms in IHRL hinges precisely on whether there is a war or "public emergency" in which case these rights can be limited. That decision-makers examine objective conditions in the country-of-origin, is not a ridiculous demand, as such information must be considered anyway before returning an individual if she is deemed not deserving of refugee status.
- Canadian Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations, 17, March 1996. http://www.cisr-irb.gc.ca/en/about/guidelines/civil_e.htm
- International Committee of the Red Cross. Refugees and Internally Displaced Peoples and International Humanitarian Law http://www.icrc.org/Web/Eng/siteeng0.nsf/html/section_ihl_refugees_and_idps!Open
- Society of Professional Journalists. Reference Guide to Geneva Conventions. Online: http://www.genevaconventions.org/
- 1949 Geneva Conventions and 1977 Protocols, ICRC http://www.icrc.org/ihl.nsf/WebCONVFULL?OpenView