International Humanitarian Law and Refugee Protection
C Costello, M Foster, J McAdam, Oxford Handbook of International Refugee Law (OUP, 2020)
16 Pages Posted: 2 Jul 2020
Date Written: June 1, 2020
The chapter appraises the interrelations (or regime interaction) between International Humanitarian Law (IHL) and International Refugee Law (IRL). In so doing, it will first consider the extent to which armed conflict affects the interpretation of (global and regional) definitions of refugees and other ‘beneficiaries of international protection’. It will then address states’ protection obligations arising from IHL.
In respect of the refugee definition, jurisprudential questions arise as to the role of a persecution ‘nexus’ in conflict, the ‘inclusion’ of combatants, draft evaders, and child soldiers, as well as the effect of other fields of international law (such as international criminal law) on its interpretation, not least in respect of exclusion from refugee status. The chapter will critically consider the considerable evolution in the position of UNHCR, the role of regional and domestic courts. The chapter will query references in regional instruments (particularly the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the OAS Carategna Declaration on Refugees) to, inter alia, external aggression, occupation, foreign domination, events seriously disturbing public order, generalized violence, and internal conflict. In contradistinction, the chapter will survey interpretive challenges posed by Article 15(c) of the European Union Qualification Directive (‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’).
Regarding protection obligations, the chapter will highlight prospects for deriving non-refoulement obligations from IHL based on the obligation to ‘respect and to ensure respect’ in Article 1 Common to the four Geneva Conventions, which arguably applies irrespective of a state’s involvement in conflict, and the extent to which international human rights law aids in interpreting such obligations. The chapter will address protection obligations of parties to the conflict and query the extent to which they have been altered by state practice.
Keywords: IHL, IRL, Geneva Convention, armed conflict, Cartagena, OAU Convention, EU Qualification Directive
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