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
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.