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Commentary - Refugees and stateless persons
    [p.845] Article 73 -- Refugees and stateless persons


    2936 "Protected persons" under the fourth Convention are persons who "find themselves, in case of a conflict or occupation, in the hands (1) of a Party [...] of which they are not nationals" (Article 4 , paragraph 1). (2)

    [p.846] 2937 Stateless persons (3) therefore by implication enjoy the status of protected persons. The present Article 73 explicitly grants them such status.

    2938 As regards refugees, (4) the fourth Convention lays down explicit rules with regard to some relationships only: on the one hand, those with the State of refuge or the State of residence (Articles 44 and 45 , paragraph 4), and on the other hand, those with the Occupying Power when the latter is their country of origin (Article 70 , paragraph 2; this special provision constitutes an exception to the definition of "protected persons").

    2939 Already during the Conference of Government Experts, which preceded the CDDH, the United Nations High Commissioner for Refugees (UNHCR) expressed the opinion, which was shared by the ICRC, that these provisions of the fourth Convention were insufficient and that it was appropriate to grant refugees a status which would apply with equal force vis-à-vis all Parties to the conflict, i.e., including the Party of which they are nationals.

    2940 The draft article presented by the ICRC did not meet any opposition on this principle. Only one written amendment of substance was proposed (5) and accepted (see infra, point 2.1).

    2941 To properly understand the scope of Article 73 it is necessary to first define the protection to which refugees are entitled under the fourth Convention, either as civilians, (6) or specifically as refugees. In order to draw a complete picture of the protection of refugees, reference is also made below to the relevant provisions of Protocol I. (7)

    1. The situation of refugees under the Fourth Convention and protocol I (without applying to Article 73 )

    1.1.' Definition '

    2942 The fourth Convention does not give a definition of the term "refugee": it merely uses the criterion of de facto absence of protection by any government. The term "refugee" is therefore understood in a broad sense. (8)

    [p.847]
    1.2.' Protection of refugees as civilians '

    2943 In the fourth Convention a distinction can be made between the rules covering the civilian population irrespective of nationality, and those covering "protected persons", i.e., civilians who are not nationals of the Power in whose hands they find themselves.

    2944 As civilians, refugees fall under both categories of rules, of which the main ones are as follows:

    a) ' Rules applicable to civilians -- and to refugees -- addressed to all Parties to the conflict (including the State of which they are nationals) '

    -- general protection against the effects of hostilities (Fourth Convention: Articles 16 , 17 and 24 ; Protocol I: Articles 48 -- ' Basic rule, ' 51 -- ' Protection of the civilian population, ' 57 -- ' Precautions in attack, ' 58 -- ' Precautions against the effects of attacks, ' 76 -- ' Protection of women, ' 77 --' Protection of children, ' and 78 -- ' Evacuation of children); '
    -- the right to take refuge in protected zones (Fourth Convention: Articles 14 and 15 ; Protocol I: Articles 59 -- ' Non-defended localities ' and 60 -- ' Demilitarized zones); '
    -- the right of families to know the fate of their relatives (Fourth Convention: Articles 25 , 26 and 140 ; Protocol I: Articles 32 -- ' General principle ' and 74 -- ' Reunion of dispersed families); '
    -- the right to relief actions (Fourth Convention: Articles 23 , 55 , 59 -62, 108 -111, and 142 ; Protocol I: Articles 69 -- ' Basic needs in occupied territory ' and 70 -- ' Relief actions); '
    -- fundamental guarantees, i.e., minimum standard of humane treatment and judicial guarantees (Protocol I: Article 75 -- ' Fundamental guarantees ').

    b) ' Rules applicable solely to civilians -- and to refugees -- who are not nationals of the Power in whose hands they find themselves (i.e., who are "protected persons") '

    -- respect for the person and humane treatment (Fourth Convention: Articles 27 and 31 -34);
    -- prohibition on using protected persons to render certain points immune from military operations (Fourth Convention: Article 28 );
    - the possibility of making application to any relief organization that might assist, for example, the ICRC and UNHCR (Fourth Convention: Article 30 );
    -- retention of status held prior to the conflict (Fourth Convention: Articles 38 and 39 );
    -- the right to leave the territory (Fourth Convention, Articles 35 and 48 );
    -- the most severe measures of control are those of assigned residence and internment (Fourth Convention: Article 41 );
    -- prohibition of deportations from occupied territory (Fourth Convention: Article 49 ); [p.848]
    -- as regards offences committed before occupation, the penal jurisdiction of the Occupying Power is limited to breaches of the laws and customs of war (Fourth Convention: Article 70 , paragraph 1).

    1.3.' Specific protection of refugees '

    2945 Article 44 of the fourth Convention, which applies to aliens in the territory of a Party to the conflict (Part III, Section II), provides that the State of refuge or the State of residence, when it takes measures of control as laid down in the Convention, must not treat refugees as enemy aliens exclusively on the ground that their nationality de jure is that of an enemy State. Article 45 , paragraph 4, contained in the same Section, provides that "in no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs" (principle of non-refoulement).

    2946 Article 70 , paragraph 2, applicable to occupied territories (Part III, Section III) provides that the penal jurisdiction of the Occupying Power over its own nationals who have sought refuge in the occupied territory before the conflict is limited to offences committed after the outbreak of hostilities and to offences under normal domestic law committed before the outbreak of hostilities which would have justified extradition in time of peace.

    1.4.' Omission with regard to the protection of refugees '

    2947 The category of persons protected, as defined in paragraphs 1 and 2 of Article 4 of the fourth Convention, based on nationality, does not take into account the situation of refugees, who no longer enjoy the protection of the State of which they are nationals.

    2948 When the fourth Convention was adopted in 1949 some speakers remarked that the concept of "nationals" did not cover all cases, and in particular failed to cover the case of individuals who, having fled their country, no longer considered themselves, or were no longer considered as nationals of that country. Despite these remarks, it is for the Power in whose hands they are to decide whether the persons concerned should or should not be regarded as nationals of the country from which they have fled, i.e., as protected persons or not.(9) This unsatisfactory situation, particularly when the State of refuge is invaded by the refugee's State of origin, led to the adoption of Article 73 in Protocol I.

    [p.849]
    2. Persons covered by Article 73 of protocol I: Stateless persons and refugees considered as such before the outbreak of hostilities

    2.1.' General remarks '

    2949 The article specifies how the terms "stateless persons" an "refugees" should be understood: they are persons considered as such, either "under the relevant international instruments" or "under the national legislation of the State of refuge or State of residence".

    2950 The State of refuge is the State which has granted to the person in question the status of refugee or stateless person; the State of residence is the State which has permitted the refugee or stateless person to reside in its territory. These two concepts may apply to the same State or to two different States. In the latter case this means that one State -- the State of residence -- has agreed to harbour in its territory a refugee or stateless person considered as such by another State -- the State of refuge.

    2951 The international instruments referred to are to be understood as acts adopted by an international organization, irrespective of whether they have binding force or not. (10) They include in particular treaties, conventions, agreements, protocols, resolutions, recommendations and declarations. All instruments containing a definition of refugees or stateless persons are relevant.

    2952 Such instruments must have been "accepted by the Parties concerned". This phrase, which was not included in the ICRC draft, was introduced to include the substance of the only written amendment proposed with regard to this article. Its object is to clearly establish that international instruments concerning stateless persons and refugees only apply to States which have accepted these instruments, in other words, States which are Parties to them if they are treaties, or States which have given them binding force, or which recognize their binding force, if they are resolutions. There can indeed be no question that States which have not accepted such instruments would be indirectly bound by them on the basis of this Protocol (see also the commentary on Article 32 , pp. 346-347).

    2953 However, every Party to the conflict will of course be obliged to respect decisions taken by another Party granting the status of refugee or stateless person, whether such decisions are taken on the basis of an international instrument, on the basis of national legislation, or on the basis of both. In other words, the decision of the State of refuge or the State of residence is binding upon all Parties to the conflict, even if they have not accepted any relevant international instrument. In fact, a decision based on the national legislation of the State of refuge is clearly sufficient under the terms of the article; a decision based on an international instrument could consequently not have the effect of reducing protection and rendering Article 73 inapplicable. This does not mean that a Party [p.850] to the conflict can be bound indirectly to an international instrument which it has not accepted: it only means respecting a decision taken within the domestic framework of another State, which is, in any case, in accordance with the principle of the inviolability of rights laid down in Articles 38 and 47 of the fourth Convention.

    2.2.' Restriction of the category of beneficiaries in time ' (ratione temporis)

    2954 Article 73 is concerned with persons considered to be stateless persons or refugees "before the beginning of hostilities".

    2955 However, as regards stateless persons, we shall see below (point 2.5, letter b)) that even those who only came to be considered as such after the beginning of hostilities are protected, namely under Article 4 , paragraph 1, of the fourth Convention.

    2956 As regards refugees, the main consequence of the restriction is to limit in practice the field of application of the article ' ratione personae ' to refugees who have fled from persecution or the threat of persecution. However, other refugees, i.e., persons displaced by the conflict outside or within their own country, will enjoy protection or relief provided for civilians, particularly by Article 75 ' (Fundamental guarantees) ' (see supra, point 1.2). On the other hand, they will also benefit from the relevant provisions of international law on refugees which remain applicable despite the conflict.

    2.3.' Definition of stateless persons '

    2957 One treaty of universal application is entirely devoted to the protection of stateless persons: this is the Convention Relating to the Status of Stateless Persons of 28 September 1954. (11) It gives the following definition in Article l: "the term 'stateless person' means a person who is not considered as a national by any State under the operation of its law". The main causes of statelessness are: lack of harmonization of rules of private international law (conflict of laws), having stateless parents at birth, and disappearance of the State of origin. Thus it is a status created by factual circumstances or legal rules, rather than a status that is conferred.

    2958 Apart from the 1954 Convention which defines the status of stateless persons, there is another Convention that should be mentioned, one which deals with the actual source of the problem of statelessness: the Convention on the Reduction of Statelessness of 30 August 1961. (12)

    [p.851]
    2.4.' Definition of refugees '

    2959 In some States there will be concordance between the definitions of international instruments and national definitions, as the national law will have used the definition of an international instrument. In other States there will be a difference, either because the State is not Party to any international treaty giving a definition -- so that it is free to have its own definition -- or because the definition it has adopted in its own national legislation is more extensive than that of the treaties to which it is a Party. In this last case the national definition will prevail as it is more favourable to the victims.

    2960 The following definitions are given in the main relevant international instruments:

    a) ' Convention Relating to the Status of Refugees of 28 July 1951 ' (13)

    2961 According to Article 1, Section A, paragraph (2), the term "refugee" applies to any person who:

    "as a result of events occuring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

    2962 Section B, paragraph (1) of the same article provides that the words "events occuring before 1 January 1951" are to be understood, as States may elect, to mean either "events occurring in Europe" or "events occurring in Europe or elsewhere".

    2963 In short, they are persons fleeing from persecution or from the threat of persecution.

    b) ' Protocol Relating to the Status of Refugees of 31 January 1967 ' (14)

    2964 In substance the definition in the Protocol is identical to that of the 1951 Convention; the aim of the Protocol is to eliminate the time-limit ("before 1 January 1951") and the geographical restriction ("in Europe").

    [p.852]
    c) ' Statute of the Office of the United Nations High Commissioner for Refugees (HCR) of 14 December 1950 (15) and resolutions adopted within the framework of the United Nations '

    2965 Under the terms of this Statute the UNHCR's competence extends to all persons covered by the definition of the 1951 Convention, and also to:

    "any other person, who is outside the country of his nationality or, if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the Government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence".

    2966 The substance of this definition is identical to the definition of the 1967 Protocol.

    2967 Over the years the UNHCR has been led, on the basis of resolutions of the General Assembly, the Economic and Social Council and the Executive Committee (16) to extend his activities of protection and assistance to other categories of persons in similar situations, particularly to those "who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country". (17)

    2968 The UNHCR's mandate therefore extends not only to persons fleeing persecution or the threat of persecution, but also those fleeing from armed conflict or disturbances.

    2969 If a State has recognized the competence of the UNHCR with regard to certain persons before the beginning of hostilities, this means that they will benefit from Article 73 independently of the fact whether or not they were considered refugees under a relevant international instrument.

    d) ' Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969 ' (18)

    2970 This Convention provides that the term "refugee" applies to refugees as defined in the 1967 Protocol, as well as:

    [p.853] "to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality".

    e) ' Principles relating to the treatment of refugees adopted by the Afro-Asian Legal Consultative Committee ' (19)

    2971 The principles adopted in 1966 give the following definition of the refugee:

    "A refugee is a person who, owing to persecution or well-founded fear of persecution for reasons of race, colour, religion, political belief or membership of a particular social group:
    (a) leaves the State of which he is a national, or the Country of his nationality, or, if he has no nationality, the State or Country of which he is a habitual resident; or,
    (b) being outside such State or Country, is unable or unwilling to return to it or to avail himself of its protection."

    2972 According to an Addendum of 1970, the principles of 1966

    "mainly contemplate the status of what may be called political refugees who have been deprived of the protection of their own Government and do not provide adequately for the case of other refugees or displaced persons".

    2973 Consequently the Addendum purports to protect also such other persons, i.e.:

    "Any person who because of foreign domination, external aggression or occupation has left his habitual place of residence, or being outside such place, desires to return thereto but is prevented from so doing by the Government or authorities in control of such place of his habitual residence".

    2.5.' The effects of Article 73 '

    a) ' General remarks '

    2974 Stateless persons and refugees "shall be protected persons within the meaning of Parts I and III of the fourth Convention", provided they are considered as such before the events leading to the application of the Protocol.

    2975 In fact, this means that they will enjoy the protection laid down by the fourth Convention as a whole, as Part II already applies to them in the sense that it covers the whole of the civilian population in the territory of Parties to the conflict without any adverse distinction, in particular of nationality.

    2976 Such protection will be given "in all circumstances", i.e., in all situations where humanitarian law applies. Furthermore it will be granted "without any adverse [p.854] distinction", i.e., without any discrimination, unless this is based on a different need for protection or assistance.

    2977 It should be noted that acts qualified as grave breaches in the Conventions constitute grave breaches of the Protocol if they are committed against persons protected by Article 73 (see Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 2, and Article
    147 , Fourth Convention).

    b) ' Effect on stateless persons '

    2978 Although they are not explicitly protected by the 1949 Conventions, stateless persons enjoy the protection of all the provisions of the fourth Convention by virtue of Article 4 , paragraph 1. (20) According to this provision, "persons protected by the Conventions 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 a Party to the conflict or Occupying Power of which they are not nationals". On the other hand, they do not fall under the exceptions to the general rule which are contained in paragraphs 2 and 4 of the same Article 4 . This proves that they are protected persons under the fourth Convention. The article under consideration here is therefore merely a formal confirmation of this right.

    2979 The fact that Article 73 only covers persons considered as stateless persons "before the beginning of hostilities" cannot have the effect of restricting the protection accorded them by the fourth Convention, as this would be contrary to the ' ratio legis ' of the article, which is to improve their protection.

    2980 Thus persons who, ' before or after ' the beginning of hostilities are considered as stateless persons under the relevant international instruments accepted by the Parties concerned or under the national legislation of the State of refuge or of residence, are protected by the fourth Convention and Protocol I. (21) As for refugees, the decision of the State which has acknowledged the status of stateless person is binding upon the other States concerned.

    c) ' Effect on refugees '

    2981 As regards Part I of the fourth Convention, Article 73 of the Protocol has the effect of modifying Article 4 of that Convention by adding to the list of protected persons "refugees in the sense of Article 73 of the Protocol" and eliminating the restrictions of paragraph 2 in respect of them. Thus refugees enjoy the protection of all the relevant provisions of the Fourth Convention, irrespective of their nationality and regardless of the Party in whose power they have fallen. (22)

    2982 The reference to Part III might seem superfluous. However, in our view it reveals a willingness to grant refugees the best possible protection and allows each article of the Convention to be interpreted in the most favourable light for refugees. This means, for example, that refugees are entitled to the protection of [p.855] Article 40 , paragraph 2, of the fourth Convention in all circumstances, even though that article refers to protected persons "of enemy nationality", and they may also avail themselves of the right to leave the territory as laid down in Article 48 in order to go to a third country, despite the heading of that article, which refers to repatriation. (23)

    2983 The effects with regard to the different Sections of Part III are as follows: the provisions of Part III, Section I (Provisions common to the territories of the Parties to the conflict and to occupied territories) apply to refugees, whether they are in the power of the State of refuge or of the State of residence, which was already the case before Article 73 came into being, or whether they are in the State of which they are nationals, which is a new provision. According to this Section, refugees are entitled in particular to respect for their persons and to be humanely treated (Articles 27 and 31 -34) and they are entitled to make application to the services of the Protecting Powers (of the State of refuge) and to relief organizations (Article 30 ).

    2984 The provisions of Part III, Section II (Aliens within the territory of a Party to the conflict), already regulated the relations between refugees and the State of refuge; Article 73 merely confirms these provisions. Articles 44 and 45 , paragraph 4, which are in this Section are not modified.

    2985 The provisions of Part III, Section III (Occupied territories), become fully applicable to refugees, and this represents a change in the law when the Occupying Power is the State of which they are nationals. This Section in particular gives them the right to leave the occupied territory (Article 48 ) and protects them from being forcibly transferred or deported (Article 49 ). In addition, according to Article 70 , paragraph 1, of the fourth Convention, refugees may not be arrested, prosecuted or convicted for acts committed or for opinions expressed before the occupation, with the exception of breaches of the laws and customs of war. Paragraph 2 of that article is only applicable to nationals of the Occupying Power who sought refuge in the occupied territory before the beginning of hostilities, but without having acquired the status of refugee in the sense of Article 73 .

    ' C.F.W. '


    NOTES

    (1) [(1) p.845] For the meaning of the expression "in the hands" or "in the power", see introduction to this Section, supra, p. 837;

    (2) [(2) p.845] However, see the other paras. of Art. 4, which restrict or enlarge the group of protected persons: paragraph 2 provides that nationals of a State which is not bound by the Convention are not protected by it. It also provides that nationals of a neutral State (for the definition of a neutral State, see commentary Art. 2, sub-para. (c), supra, p. 61) who are in the territory of a belligerent State, and nationals of a co-belligerent State, will not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. Paragraph 3 refers to Part II, which has a wider scope: it covers all the populations of countries engaged in conflict without any distinction of nationality. Paragraph 4 excludes persons protected by the First, Second or Third Conventions;

    (3) [(3) p.846] For the definition of a stateless person, see infra, point 2.3, p. 850;

    (4) [(4) p.846] For the definition of refugees, see infra, points 1.1 and 2.4, p. 851;

    (5) [(5) p.846] O.R. III, p. 287, CDDH/III/306;

    (6) [(6) p.846] Members of the armed forces are not protected by the Fourth Convention, see supra, note 2, in fine;

    (7) [(7) p.846] N.B.: Article 73 extends the scope of application of the rules of the Fourth Convention; it has no effect on the provisions of Protocol I;

    (8) [(8) p.846] For the definitions of the main international instruments, see infra, point 2.4, p. 851;

    (9) [(9) p.848] Commentary IV, p. 47;

    (10) [(10) p.849] ' Commentary Drafts, ' p. 80. See also O.R. XV, p. 18, CDDH/III/SR.42, para. 52. In fact, it is in this sense that the term "international instruments" was used during the CDDH; this corresponds with the English concept of legal instruments, and not with the French meaning of this term which is confined to treaties;

    (11) [(11) p.850] On 31 December 1984 there were 35 States Parties to this Convention;

    (12) [(12) p.850] On 31 December 1984 there were 13 States Parties to this Convention;

    (13) [(13) p.851] On 31 December 1984 there were 95 States Parties to this Convention;

    (14) [(14) p.851] It is possible to be party to the Convention or the Protocol, or to both simultaneously. The status of a refugee is identical in all three cases, as the Protocol refers back to the articles of the Convention on this subject. On 31 December 1984 94 States were Parties to the Protocol;

    (15) [(15) p.852] Adopted as an annex to Resolution 428 (V) of the United Nations General Assembly;

    (16) [(16) p.852] General Assembly Resolutions 1167 (XII), 1388 (XIV), 1501 (XV), 1671 and 1673 (XVI), 1783 and 1784 (XVII), 1959 (XVIII), 2958 (XXVII), 3143 (XXVIII), 3454 and 3455 (XXX), 31/35, 32/67, 32/68, 33/26, 34/60, 35/41, 35/135, 35/187; ECOSOC Resolutions 1655 (LII), 1705 (LIII), 1741 (LIV), 1799 (LV), 1877 (LVII), 2011 (LXI), 1978/39, 1980/8, 1980/54; Conclusions of the Executive Committee of the HCR: see HCR/IP/2/Eng/REV., 1984;

    (17) [(17) p.852] Official documents of the General Assembly, 36th session, supplement No. 12A (A/36/12/ Add.1) of 09.11.81, pp. 18 ff. Resolution No. 22 can also be found in the ' Conclusions on the international protection of refugees, ' HCR/IP/2/Eng/REV., 1984;

    (18) [(18) p.852] On 31 December 1984 there were 29 States Parties to this Convention;

    (19) [(19) p.853] Eighth session, Bangkok, 1966, and eleventh session, Accra, 1970;

    (20) [(20) p.854] In this sense, see ' Commentary IV, ' pp. 45 ff.;

    (21) [(21) p.854] This was not contested during the CDDH;

    (22) [(22) p.854] Thus all refugees benefit from the rules quoted above, point 1.2, including those under b);

    (23) [(23) p.855] The headings of the Conventions have in any case no official character: they were added by the Secretariat of the 1949 Conference and were not adopted by the Diplomatic Conference itself;