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Flight in times of war

30-09-2001 Article, International Review of the Red Cross, No. 843, by Walter Kälin

   
Walter Kälin
is Professor of International and Constitutional Law at the University of Bern (Switzerland). He has written extensively on refugee law and was a consultant to UNHCR on several occasions. 

 
Abstract 

Armed conflict always has been and still is the most important cause of flight. The 50th anniversary of the Refugee Convention provides an appropriate opportunity for re-examining the relevance of international refugee law for persons fleeing armed conflict and its multiple conceptual and legal relationships with international humanitarian law.
 
The Convention relating to the Status of Refugees was adopted on 28 July 1951 as an instrument aimed at solving the residual problems of refugees in Europe whose flight was caused by the events of World War II [1 ] . Today, it is internal rather than international armed conflict that forces human beings all over the world to abandon their homes and flee the dangers of war. For a long time, though, the Refugee Convention found little application to situations of flight caused by armed conflict but was instead mainly used to protect victims fleeing the often very stable totalitarian and authoritarian regimes in Eastern Europe and the south. It was thought that the protection of human beings in times of war should be left to international humanitarian law. However, international humanitarian law limits its protection to refugees who are on the territory of one of the parties to an international conflict. This limitation has resulted in considerable challenges to the refugee protection regime as, traditionally, refugees fleeing the perils of war to third States were not regarded as persons having “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, i.e. not as refugees as defined by the Refugee Convention. [2 ]
 
Another challenge is that the majority of persons forced to leave their habitual residences as a consequence of armed conflict do not become refugees, as they do not flee across an international border, but remain in their country as internally displaced persons. They are a part of the civilian population, but might have specific protection needs.
 
How is present international law dealing with these different situations and problems? To answer this question, consideration will first be given to the various situations in which civilian victims of armed conflict have to flee (part 1). The article then focuses on international refugee law and shows how, in the past decade, this branch of international law has become more relevant for the protection of persons fleeing across international borders and seeking asylum abroad (part 2). This is followed by a look at the law relating to the protection of internally displaced persons (part 3). In closing, an answer is given to the question, whether and to what extent present international law has created a comprehensive and coherent protection regime for persons fleeing the perils of armed conflict.
 
 Notes
1. According to its Art. 1A, para. 2, the 1951 Convention on the Status of Refugees was originally limited to the pro tection of persons who fled as a “result of events occurring before 1 January 1951”, and States had, according to Art. 1B, para. 1(a), the possibility to declare that this phrase should be understood as “events occurring in Europe before 1 January 1951”. The temporal limitation was removed by the 1967 Protocol relating to the Status of Refugees, and only five States still retain the geographical limitation.

2. Art. 1A, para. 2. For a discussion of this notion of refugee see below.


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