Refugees in International Humanitarian Law Karna Thapa Faculty of Law, T.U.

Who is Refugee? Any person who owing to well-founded fear of being persecuted for the reason 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. (Art. 1 A. (2) Convention Relating to Status of Refugees 1951)

OAU Convention Governing the Specific aspect of Refugee Problems in Africa Art.1. term “refugee” shall mean every person who, owing 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 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.

OAU Convention….. The term “ refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or 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.

Cartagena Declaration on Refugees 1984 Added one more provision in the definition of the refugee given by other conventions like CSR and OAU Convention Who have fled their country because their lives, safety or freedom have been threatened by the generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order

Principle Concerning Treatment of Refugees 1966 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 particular social group

Principles………. 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, Being outside such state or country, is unable or unwilling to return to it or to avail himself of its protection

Principles…… Exceptions Person having more than one nationality in a position to avail protection of any country of his nationality Person who has committed prior to his admission into the country of refuge, crime against peace, war crimes, crime against humanity, or serious non- political crimes or acts contrary to the purpose and the principles of United Nations.

Universal Declaration of Human Rights, (UDHR), 1948 Art. 13 1. Everyone has the right to freedom of movement and residence within the borders of each state 2. Everyone has the right to leave any country, including his own, and to return to his country

UDHR cont…… Art. 14 1. Everyone has the right to seek and to enjoy in other country asylum from persecution. 2.This right may not be invoked in the case of prosecution genuinely arising from non political crimes or from acts contrary to the purpose and principle of United Nations

UDHR Cont….. Art. 15 1. Everyone has the to a nationality 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality

International Covenant ON Civil and Political Rights (ICCPR) 1966 1. Everyone lawfully within the territory of the state shall, within that territory have the right to liberty of movement and freedom to choose his residence 2. Everyone shall be free to leave country including his one

ICCPR…….. 3. The above mentioned rights shall not be subject to any restrictions except those which are provided by the law, are necessary to protect national security, public order (ordre public) , public health or morals or the rights and freedoms of others, and are consistence with other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country

Provisions relating to the protection of the Refugees in international humanitarian law In applying the measures of control mentioned in this present convention, the detaining power shall no 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 (Art. 44, GC IV)

Provisions contd…. Refugees and stateless persons (Art. 73, Protocol I) Persons who, before the beginning the hostilities, were considered as stateless persons or refugee under the relevant international instruments accepted by the parties concerned or under the national legislations of refuge or state of residence shall be protected person within the meaning of part I and III of the fourth convention, in all circumstances and without any adverse distinction