The cross-fertilization of international humanitarian law and international refugee law
30-09-2001 Article, International Review of the Red Cross, No. 843, by Stephane Jaquemet
AbstractInternational refugee lawyers sometimes have a problem of identity. They are used to living in a small cosy house, of which they know each room and cranny and, if any, each hidden place. After all, the 1951 Refugee Convention and its 1967 Protocol, taken together, contain less than 60 articles. Attempts to provide a more ambitious and more comprehensive treaty-law framework have failed, except on one continent, Africa, where the OAU in 1969 adopted the Convention Governing the Specific Aspects of Refugee Problems in Africa. The problem is that this tiny house cannot accommodate refugee protection in its entirety. Whereas the codification process has been put on hold, the refugee problem has inexorably grown in scope, magnitude and complexity. The logical — and rather pragmatic — response has been non-treaty legal expansion, either by using existing buildings around the tiny house or by erecting, sometimes hastily, legal annexes. The latter have taken on diverse forms, including the adoption of national implementing legislation, jurisprudential developments, and the creation of soft law (through United Nations General Assembly Resolutions and the Conclusions of the United Nations High Commissioner’s Executive Committee). As to “squatting” in existing buildings, refugee law has made use of two sister branches of law: human rights law and international humanitarian law.
While much has been written about the interface between refugee law and human rights law, a great deal remains to be said about the relationship between humanitarian law and refugee law.
Firstly, international humanitarian law and refugee law come into contact quite naturally when refugees are caught up in an armed conflict. In that case, such people are at the same time refugees and conflict victims. Logically, they should be under the dual protection of refugee law and humanitarian law, which should apply concurrently. Secondly, international humanitarian law and refugee law, instead of applying concurrently, can apply successively, forming a sort of continuum in terms of protection. In other words, a victim of armed conflict may be forced to leave his or her country because he or she does not obtain adequate protection from international humanitarian law, for instance in all conflicts where there are gross violations of human rights and grave breaches of humanitarian law. In such circumstances, those grave breaches constitute a substantial part of the refugee definition and become the determining factor triggering refugee protection. Thirdly, international humanitarian law may have influenced refugee law in that the latter may have “borrowed” from the former concepts, principles or rules, either at the standard-setting level or at the interpretation stage. One of the cardinal principles of international refugee law, the exclusively civilian character of refugee camps and settlements and, more broadly, of asylum, has been shaped and permeated by a founding principle of international humanitarian law, namely, the principle of distinction (the prohibition of attacks against civilian populations and civilian objects). Another example is the exclusion from the protection of the Refugee Convention of persons who have committed a war crime.
This article will be confined to a brief and non-exhaustive discussion of the first two aspects of the relationship between international humanitarian law and refugee law.