Law Applicable to Persons Fleeing Armed Conflicts

As early as February 23rd, the U.S. Ambassador to the United Nations in New York, Linda Thomas-Greenfield, estimated that 5 million people may flee if hostilities erupted in Ukraine. As of March 13th, less than three weeks after the Russian Federation launched an unprecedented military offensive into Ukraine, more than 2.8 million people have crossed into neighboring countries. Others are reported to be on the move, both inside and outside Ukraine. Even before the invasion, 854,000 internally displaced people were reported in Ukraine. The situation in Ukraine is claimed to be the fastest growing refugee crisis in Europe since the Second World War.

This post addresses international law and legal terminology applicable to refugees and displaced persons. What mainly distinguishes refugees from displaced persons is whether they have crossed a border or not. Depending on their situation the applicable law varies. The basics are, however, the same. Under the law of armed conflict, also known as international humanitarian law (IHL), they are chiefly civilians. They are also protected by international refugee law and by international human rights law. In that respect, they must be respected and protected. They must not be targeted. Their dignity must be preserved. They must be treated humanely. And they should be granted impartial humanitarian assistance.

International Humanitarian Law

IHL provides fundamental protections to civilians and others during armed conflict. Many of its foundations are laid in the Geneva Conventions of 1949 and their Additional Protocols of 1977, which specifically mention “refugees” as protected persons. In addition to Article 70, applicable to occupied territories which mentions refugees, Article 44 of the Fourth Geneva Convention (GC IV) states, “the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.” This provision is complemented further by Article 73 of Additional Protocol I (AP I) which provides,

Persons who, before the beginning of hostilities, were considered as stateless persons or refugees under the relevant international instruments accepted by the Parties concerned or under the national legislation of the State of refuge or State of residence shall be protected persons within the meaning of Parts I and III of the Fourth Convention, in all circumstances and without any adverse distinction.

What should be understood from these provisions?

First, Article 44 is situated in a section of GC IV dedicated to the protection of aliens in the territory of a party to an armed conflict. It aims to protect nationals of an enemy State who find themselves in the territory of their State’s enemy. In the present case, Russian nationals on the territory of Ukraine, including refugees, are protected by Article 44. They should not be treated unfavorably by Ukrainian authorities on the basis of their Russian nationality. Because refugees no longer claim the protection of their country of origin, they are particularly vulnerable in the territory of a State at war with their State of nationality. They become enemy aliens, and Article 44, therefore, affords them specific protection.

In his 1958 Commentary on GC IV, Jean Pictet examined the definition of refugee in the newly adopted 1951 Convention on the Status of Refugees. He deemed the definition “too technical and too limited in scope to meet the requirements of the Geneva Convention.” He concluded that Article 44 “should be interpreted in [a] broad sense, in accordance with the spirit of the Convention.” Later, AP I removed limitations related to the Article 44 material scope of application. Thus from 1977, for Parties to AP I, any person to whom refugee status was afforded prior to hostilities is to be considered a protected person “in all circumstances and without any adverse distinction,” be they aliens on the territory of a Party to the conflict or not.

However, while lifting some limitations, Article 73 of AP I includes a temporal one. It applies to persons who became stateless or refugees “before the beginning of hostilities” (emphasis added). In the present Ukraine case, this provision would indeed be limited to people to whom refugee status would have been afforded before Spring 2014, when the armed conflict started.

The provisions of both GC IV and of AP I, therefore, do not adequately address movements of population generated by contemporary armed conflicts. However, before moving to another body of law, namely International Refugee Law, the interpretation of which has evolved in the sense of being able to afford a protection to people fleeing armed conflicts, at least two key elements of IHL remain to be emphasized. First, people on the move who are not combatants, be they refugees or not, in a broad or restrictive sense, are above all civilians. Therefore, they benefit from all the protections of that category of individuals under IHL, while they do not take direct part in hostilities. If they do so, they still are civilians, but they lose their protection from direct targeting during their participation.

Second, some customary IHL provisions aim to prevent displacement altogether or provide guarantees for those being displaced. For instance, “all possible measures must be taken in order that [they] are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated” (Rule 131 of International Committee of the Red Cross Study on Customary IHL). Similarly, “[d]isplaced persons have a right to voluntary return in safety to their homes” (Rule 132). Neither rule requires a specific status as refugee to accord protection. Each applies widely to civilians.

International Refugee Law

 When dealing with protection of people fleeing armed conflicts, International Refugee Law (IRL) naturally comes to mind. In the aftermath of the Second World War, the United Nations created a High-Commissioner for Refugees (UNHCR) to enhance international protection of refugees. Adopted soon after, the 1951 Convention relating to the Status of Refugees is the foundation of IRL.

Complemented by a 1967 Protocol, the Convention offers a narrow definition of refugee. In a nutshell, a refugee is a person who is outside of their country of origin or of habitual residence and who has a well-founded fear of being persecuted on the basis of one of five criteria strictly enumerated at Article 1 of the 1951 Convention. The criteria include: race; religion; nationality; membership in a particular social group; and political opinion.

The determination of refugee status is an individual one. To enjoy refugee status under the Convention, each Ukrainian crossing a border to Romania, Hungary, Slovakia, or Poland must demonstrate that they personally fear persecution on the basis of one of the five categories. Such determinations are practically impossible given that hundreds of thousands, even millions, of people are crossing these borders. Broader definitions may be found in the African and Inter-American systems. They encompass people who flee because their lives, safety or freedom have been threatened by, inter alia, generalized violence, massive violation of human rights or foreign aggression. However, this extended material scope of application is limited in geographical scope and is not applicable to the current situation of armed conflict in Ukraine.

Yet people fleeing en masse and seeking refuge in neighboring countries for reasons apart from qualifying persecution are not left without protection. The UNHCR developed, already 60 years ago, a “prima facie” approach to allocating protection. This refers to “the recognition by a State or UNHCR of refugee status on the basis of readily apparent, objective circumstances in the country of origin …. [It] acknowledges that those fleeing these circumstances are at risk of harm that brings them within the applicable refugee definition” (UNHCR Guidelines on International Protection, No 11).

This approach is mainly used in large-scale situations such as that in Ukraine and bordering States. As a result, all people currently crossing a border to find refuge from the situation in Ukraine benefit from this group determination, and in the absence of evidence to the contrary, they must be considered refugees regardless of nationality, race, or ethnicity. IRL is very clear on this point. Refugee status is afforded to people fleeing a situation occurring in their own country or in the country of their habitual residence. And the cornerstone principle of non-refoulement applies today to any person seeking refuge. Nobody can be returned to a place where he or she is at risk of irreparable harm upon return. There is no exception to the principle of non-refoulement.

Contemplating IRL, the situation of Russian people leaving Russia following the adoption of devastating international sanctions and the adoption of internal arbitrary legislation, such as limiting the freedom of expression and criminalizing any attempt to speak about “war” rather than “special military operations,” should be mentioned. If such persons can demonstrate that they are fleeing the Russian Federation because of a fear of being personally persecuted because of their political opinion, for example, they should be granted refugee status.

European Union Response

Given the unprecedented situation, and as a political matter, the European Union (EU) has recently activated a 20-year-old directive relevant to persons fleeing conflict. The EU Council decided on March 4th to implement a temporary protection mechanism, stating, “substantial areas of Ukrainian territory now constitute areas of armed conflict from which thousands of persons have fled or are fleeing.” The Council “established that there is a mass influx of displaced persons” which requires temporary protection, that is to “allow them to enjoy harmonised rights across the Union that offer an adequate level of protection.” Temporary in nature, this protection is to be valid for one year, renewable twice for 6 months.

A lot could be said about both the content of this directive, which in part distinguishes between Ukrainians and non-Ukrainians, and about the political background of its adoption. The EU largely disregarded it in recent contexts such as the influx of people fleeing the conflicts in Syria and Libya. If this is timely and appropriate for all those fleeing the dire situation of Ukraine, it should be pointed out that people from Syria, Afghanistan, Libya, etc., would have deserved such a warm welcome on the European territory. If the EU is ready to accommodate an anticipated 5 million of people in the current context, it is hardly understandable that less than 1 million from previous recent armed conflicts were seen as a major crisis for which the EU was not equipped.

Internal Displacement Principles

On a final note, it should not be forgotten that people currently trying to escape indiscriminate attacks or besieged towns of Ukraine are not all crossing an international border. In that case, they cannot be seen as “refugees.” However, they remain civilians under IHL and are protected as such. Moreover, given the precarious situations in which they are placed, their protections are also recalled in the 1998 UN Principles on Internal Displacement. Not binding as such, these principles are nonetheless a compilation of relevant IHL and International Human Rights Law (IHRL) rules, excerpted from relevant treaties. They “address the specific needs of internally displaced persons worldwide by identifying rights and guarantees relevant to their protection…. They apply to the different phases of displacement, providing protection against arbitrary displacement, access to protection and assistance during displacement and guarantees during return or alternative settlement and reintegration.” The Principles are also a reminder that IHRL does not cease to apply during armed conflicts.

Conclusion

A complex array of terms, definitions, and protections applies to persons displaced during or fleeing armed conflicts such as that in Ukraine. The sum of their international legal protections involves navigation of IHL and IRL treaties, as well as political and soft-law instruments. Although when viewed individually these legal sources may suffer material gaps, collectively they offer a quite thorough legal basis for protection of the most vulnerable populations even in the direst of circumstances.

The basic rules outlined at the beginning of this post are worth reiterating. Displaced persons and refugees must be respected and protected. They must not be targeted. Their dignity must be preserved. They must be treated humanely. And they should be granted impartial humanitarian assistance.

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Julia Grignon is an Associate Professor of the Faculty of Law at Laval University (Canada).

Photo credit: Ministry of Internal Affairs of Ukraine (mvs.gov.ua)