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The Civilian Character of Asylum: Separating Armed Elements from Refugees

08-03-2001 Statement

ICRC statement to the UNHCR Global Consultations on International Protection, first meeting, 8-9 March 2001

 

 

Mr Chairman,

The International Committee of the Red Cross (ICRC) would like to congratulate UNHCR for having put the issue of the civilian character of asylum and separation of armed elements from refugees on the agenda of today’s meeting and for the detailed and thought-provoking background note it has prepared on the subject.

The militarization of asylum is one of the principal threats to the protection of refugees today and the ICRC shares UNHCR’s concern that the presence of armed elements within refugee populations poses serious challenges to the refugee system; it is a threat to the security of refugees, host communities and humanitarian actors; it may also have dangerous repercussions on international peace and security by causing the expansion of co nflicts to the territory of host states.

In its intervention today the ICRC will address the following issues:

1. identification of armed elements

2. the duties of neutral states with regard to armed elements

3. the ICRC’s mandate and activities with regard to such persons

4. the issue of exclusion of armed elements from refugee protection.

   

    

 1. Identification of armed elements  

    

The identification of armed elements is clearly a prerequisite for their separation from the refugee population. Distinguishing combatants from civilians is also of fundamental importance - albeit for different reasons – in international humanitarian law, and this body of law lays down criteria for determining who is a combatant. In international armed conflicts combatants are members of armed forces; i.e. their members are organised under responsible command and subject to an internal disciplinary system which enables the enforcement of the rules of international law applicable in armed conflicts.

The position in non-international conflicts is more complicated because the concept of " combatant " does not exist. Instead, a person who takes a direct part in hostilities will lose the protection against attack accorded to civilians. What amounts to “taking a direct part in hostilities”? While humanitarian law instruments do not provide a definition, it is generally understood that the commission of acts which, by th eir nature or purpose are intended to cause actual harm to enemy personnel and matériel, amounts to a direct participation in hostilities, while the supply of food and shelter to combatants or generally “sympathising” with them does not.

Recognising the inherent difficulties in the practical application of these criteria, humanitarian law provides that in case of doubt as to whether a person is a civilian or a combatant, that person is to be considered a civilian.

   

    

 2. The duties of neutral states with regard to armed elements  

    

The next issue the ICRC wishes to address is the duty of neutral states - i.e. the host states to which refugees have fled as a result of armed conflicts - with regard to members of the armed forces of parties to a conflict who find themselves in their territory.

As stated in UNHCR’s background paper, the situation is addressed by the Fifth Hague Convention of 1907 respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, whose provisions can be considered to have attained customary status. The first point that must be made is that this convention relates to the duties of neutral states in situations of international armed conflict. It is the ICRC’s view that it can also be applied by analogy in situations of non-international conflicts, in which combatants either from the government side or from armed opposition groups have fled into a neutral state.

In order to retain their neutrality, host states cannot be seen as offering any assistance to either s ide, for example by permitting them to use their territory to conduct hostilities. Accordingly, Article 5 of the Convention prohibits neutral states from allowing belligerents to move troops across their territories. 

More closely related to the issue at hand is Article 11 of the Convention. This requires neutral parties receiving on their territory troops belonging to the belligerent armies to intern them, as far as possible, at a distance from the theatre of war. The provision adds that the neutral party may keep such internees in camps. Additional to this is the obligation in Article 12 of the Convention requiring the neutral power to supply the interned combatants with the food, clothing and relief required by humanity.

Thus host states are obliged to separate combatants from refugees and to intern them.

With regard to the treatment to be given to such internees, although they will not have prisoner-of-war status because they have not fallen into the hands of the enemy, by virtue of Article 4(B)(2) of the Third Geneva Convention of 1949 they are entitled, as a minimum, to the protection afforded to prisoners of war and must be repatriated at the end of hostilities. 

In the management of such internment camps particular attention should be given to internal security, as they are likely to host both combatants and deserters. Consideration should also be given to the special needs of any women and child soldiers who may be among the internees.

It must be emphasised that the responsibility for meeting the needs of interned combatants lies with the host state.

   

    

 3. ICRC activities  

    

Having established the duties and responsibilities of neutral states towards armed elements in their territory, mention should now be made of possible ICRC activities for such persons.

On the basis of the Third Geneva Convention, as well as the right of humanitarian initiative granted to it by the Statutes of the International Red Cross and Red Crescent Movement, the ICRC may visit such internees and carry out its traditional protective activities for the benefit of persons deprived of their liberty for reasons related to an armed conflict.   The activities of the ICRC with respect to such internees aim to ascertain the treatment accorded to them and their conditions of detention.

As already stated, it is the host state which bears responsibility for meeting the primary needs of the internees. This being said, there may be exceptional circumstances when, in the course of its visits to such internees, it will be apparent to the ICRC that their material conditions of detention are inadequate because the host state is unable to meet their needs. In such cases the ICRC may exceptionally provide material assistance on a temporary basis, and alert the international community of the need for assistance.

    

It should also be mentioned that the ICRC’s tracing activities - that is the re-establishment of family links for families dispersed by the conflict, the search for missing persons and the exchange of family news – are available both for refugees and for interned armed elements.

Recognising the importance of coordinating the response of humanitarian actors, in order to better define their respective tasks, the ICRC and UNHCR have been involved in extensive consultations over the p ast months, both in Geneva and in Lusaka, regarding the problem of armed elements seeking refuge in Zambia.

   

    

 4. Exclusion clauses  

    

Finally, the ICRC wishes to make some concluding remarks on the question of the application of exclusion clauses to former combatants. While recognising the need to separate such elements from the refugee population, the ICRC wishes to sound a note of caution against assuming that every former combatant should be excluded from the protection of the 1951 Refugee Convention. The exclusion clause in Article 1F should be interpreted restrictively. Although there may be cases in which combatants may in fact have committed serious violations of humanitarian law depriving them of a claim to refugee status, this is a determination to be made on a case-by-case basis. Such an individualised approach is all the more important in view of the difficulties discussed earlier in determining who is a combatant.

Thank you Mr Chairman.

LG 2001-009-ENG