1

Humanitarian and Refugee Law

Unit-I

Qs. Definition, content and application of International Humanitarian Law

Ans. IHL is a part of public international law. Public international law is a broad set of treaties,
customary law, principles and norms. The framework traditionally regulated relationships only between
States. It has evolved, however, to cover a broad range of actors. IHL is notable in this regard, as it
recognizes obligations for both States and non-State armed groups that are parties to an armed conflict.

IHL regulates activity during armed conflict and situations of occupation. It is distinct from, and applies
irrespective of, the body of law that regulates the recourse to armed force. This framework is known as
the jus ad bellum, and is enshrined in the UN Charter. It regulates the conditions under which force may
be used, namely in self-defense and pursuant to UN Security Council authorization. Once there is an
armed conflict IHL applies to all the parties, whether or not a party was legally justified in using force
under jus ad bellum principles.

Meaning of Humanitarian law

Humanitarian law refers to the body of law dealing with armed conflict or law of war and their effects. It
mainly aims at protecting persons, minimizing destruction, loss of life, and unnecessary human suffering
in armed conflicts. It also defines the conduct and responsibilities of hostile nations, neutral nations, and
individuals engaged in warfare.

Humanitarian law is generally based upon the Geneva Conventions. It also contains provisions from the
Hague Conventions, treaties, case law, and customary international law. Humanitarian law is also called
International humanitarian law (IHL), laws of war, laws and customs of war, or law of armed conflict.

International Humanitarian Law – Its Origin.

The Battle of Solférino of 1859 and subsequent the Geneva Convention of 1864 led to the establishment
of International Red Cross Committee. Twelve nations signed the Convention on 22 nd August 1864 in
which they agreed to provide assistance by expediting supplies to medical personnel for their use. They
also adopted a special emblem of the Red Cross Committee.

The Hague Convention was developed alongside the Geneva Convention. It laid down the rules and
regulations governing conduct of war. The treaties which emerged from The Hague Peace Conferences in
1899 and 1907 laid down restrictions on usage of armaments, such as the use of air bombs and chemical
warfare, realising massive destruction caused by the same. The formation of the League of Nations in
1919 has been attributed to the need to create International Laws with respect to armed conflicts.
 2

The Hague Convention – Geneva Protocol permanently banned chemical and biological warfare because
it was anticipated that they had a potential to cause high degrees of destruction. The Protocol has been in
force from 8th February 1928.

The factor that has differentiation of the Geneva Convention from the Hague Convention is that the
former was primarily concerned with the treatment of soldiers whereas the latter is concerned with the
treatments of civilians and also mentioned explicitly about the rules regarding the permitted conduct
during a war.

Principles of Humanitarian Law

Principle of Distinction – Parties to a war should have the ability in order to distinguish combatants from
the civilians and ensure that they should target only the former.

Principle of Necessity and Proportionality – It refers to the ability of restraint in the amount of force
applied in defeating the enemy that should be shown by parties to an armed conflict. Under no
circumstances should there be excessive loss of life in order to achieve the goals set forth due to military

Principle of Humane Treatment – Humanitarian Law has made it mandatory that all civilians are to be
treated humanely and with respect at all times. It also aims to prohibit violence against the life of a
civilian who is not a part or is no longer a part of the war.

Principle of non-discrimination – The fundamental rights of every person shall be secured whether or
not he is involved in the war.

Preferential treatment to Women and Children – Preferential treatment to women and children to
ensure respect and protection of the same from the effects of war. The Law prohibits children below 18
years from taking part in the hostilities.

Content of Humanitarian Law

Humanitarian Law mandates the rules and regulations for protection to be provided under the following
situations:

1. International Armed Conflict – Protection is given to the following persons:

 i) Land warfare – Wounded or sick military personnel and members of the armed forces’
medical services
 ii) Naval Warfare – wounded, sick or shipwrecked military personnel and members of the
naval forces’ medical services;
 3

 iii) Prisoners of war

 iv)Civilian population which including foreign civilians, civilians in territories which have
been occupied, medical and religious personnel and civil defence units.

2. Non-International Armed Conflict – Apart from the armed forces, protection is given to the
following persons:

 Wounded or sick fighters

 People deprived of their freedom as a result of the conflict.
 Civilian population.
 Medical and Religious Personnel

Due importance is to be given to the fact that the conditions applicable under Protocol II supersede those
under Article 3. Hence, International Humanitarian Law also becomes applicable to the armed forces,
whether they are actively involved or not in the conflict.

Humanitarian Law, Human Rights Law and Refugee Law

It is noteworthy that Humanitarian Law, Human Rights Law and Refugee Law complement each other,
however they are totally distinct from each other. The former two aim to protect right to life and dignity
of people, however Humanitarian Law only becomes applicable in the times of war whereas Human
Rights Law is applicable at both times, peace and war. States have to abide by both the laws. During the
times of Emergency, a State can impose certain conditions under which human rights can be suspended.
However, the State cannot suspend the fundamental rights guaranteed to a citizen under its Constitution.
The provisions of Humanitarian Law, on the other hand, are to be adhered to and respected in all
circumstances. The latter is complementary to Human Rights Law. In the event of an armed conflict, the
Refugee law complements Humanitarian Law.

Humanitarian Law has been developed on the basis of Geneva Convention, the Additional Protocols and
Hague Convention and the treaties covering the process to be adopted during a conflict. Human Rights
law has been developed through International instruments such as:

1948. Universal Declaration of Human Rights 1948.

 4

1949. Covenant on Economic, Social and Cultural Rights 1966.

1950. Covenant on Civil and Political Rights 1966.

Each State has devised its own law in order to implement the rules and regulations made in the above
instruments. On the other hand, the Refugee Law has originated from the United Nations Convention
relating to Refugees 1951 which supervises the protection of refugees on an International level.

Qs. International Humanitarian Law and Human Rights Law

Ans. IHL and international human rights law are complementary bodies of international law that share
some of the same aims. Both IHL and human rights law strive to protect the lives, the health and the
dignity of individuals, albeit from different angles – which is why, while very different in formulation, the
essence of some of the rules is similar. For example, both IHL and human rights law prohibit torture or
cruel treatment, prescribe basic rights for persons subject to criminal process, prohibit
discrimination, contain provisions for the protection of women and children, and regulate aspects of the
right to food and health. There are however important differences between them: their origins, the scope
of their application, the bodies that implement them, and so on.

What is international human rights law?

Human rights law is a set of international rules, established by treaty or custom, on the basis of which
individuals and groups can expect and/or claim certain rights that must be respected and protected by
their States. The body of international human rights standards also contains numerous non-treaty-based
principles and guidelines ('soft law').

The main treaties of human rights law are given below:

a) Universal instruments

I. Convention on the Prevention and Punishment of the Crime of Genocide (1948)

II. Convention on the Elimination of All Forms of Racial Discrimination (1965)
III. International Covenant on Civil and Political Rights (1966)
IV. International Covenant on Economic, Social and Cultural Rights (1966)
V. Convention on the Elimination of All Forms of Discrimination against Women (1979)
VI. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1984)
VII. Convention on the Rights of the Child (1989)
VIII. International Convention on the Protection of the Rights of All Migrant Workers and Members of
their Families (1999)
IX. International Convention for the Protection of All Persons from Enforced Disappearance (2006)
X. Convention on the Rights of Persons with Disabilities (2006)

b) Regional instruments

I. European Convention on Human Rights (1950)

 5

II. American Convention on Human Rights (1969)

III. African Charter on Human and Peoples' Rights (1981).

These treaties are supervised by human rights bodies, such as the Human Rights Committee for the
International Covenant on Civil and Political Rights and the European Court for Human Rights for the
European Convention on Human Rights.

What is international humanitarian law

Humanitarian law refers to the body of law dealing with armed conflict or law of war and their effects. It
mainly aims at protecting persons, minimizing destruction, loss of life, and unnecessary human suffering
in armed conflicts. It also defines the conduct and responsibilities of hostile nations, neutral nations, and
individuals engaged in warfare.

Humanitarian law is generally based upon the Geneva Conventions. It also contains provisions from the
Hague Conventions, treaties, case law, and customary international law. Humanitarian law is also called
International humanitarian law (IHL), laws of war, laws and customs of war, or law of armed conflict.

Difference between HRL and IHL

Following difference between HRL and IHL—

Origins
IHL, the origins of which are ancient, was codified in the second half of the 19th century, under the
influence of Henry Dunant, the founding father of the International Committee of the Red Cross.
Human rights law is a more recent body of law: it had its origins in certain national human rights
declarations influenced by the ideas of the Enlightenment (such as the United States Declaration of
Independence in 1776 and the French Declaration of the Rights of Man and of the Citizen in 1789). It
was only after the Second World War that human rights law emerged, under the auspices of the United
Nations, as a branch of international law. The Universal Declaration of Human Rights of 1948 first
defined human rights law at the international level in a non-binding General Assembly resolution. It was
only in 1966 that this Declaration was translated into universal human rights treaties: the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights, both of 1966.

Temporal scope of application

While IHL applies exclusively in armed conflict, human rights law applies, in principle, at all times, i.e.
in peacetime and during armed conflict. However, unlike IHL, some human rights treaties
permit governments to derogate from certain obligations during public emergencies that threaten the life
of the nation. Derogation must, however, be necessary and proportional to the crisis, must not be
introduced on a discriminatory basis and must not contravene other rules of international law – including
provisions of IHL. Certain human rights can never be derogated from: among them, the right to life, the
prohibition against torture or cruel, inhuman or degrading treatment or punishment, the prohibition
against slavery and servitude and the prohibition against retroactive criminal laws.

Geographical scope of application

 6

Another major difference between IHL and human rights law is their extraterritorial reach. That IHL
governing international armed conflicts applies extraterritorially is not a subject of controversy, given that
its purpose is to regulate the conduct of one or more States involved in an armed conflict on the territory
of another. The same reasoning applies in non-international armed conflicts with an extraterritorial
element: the parties to such conflicts cannot be absolved of their IHL obligations when the conflict
reaches beyond the territory of a single State. Despite the views of a few important dissenters, it is widely
accepted that human rights law applies extraterritorially based, inter alia, on decisions by regional
and international courts..

Personal scope of application

IHL aims to protect persons who are not or are no longer taking direct part in hostilities. It protects
civilians and combatants hors de combat, such as the wounded, the sick and the shipwrecked or prisoners
of war. Human rights law, developed primarily for peacetime, applies to all persons within the
jurisdiction of a State. Unlike IHL, it does not distinguish between combatants and civilians or provide
for categories of 'protected person'.

Parties bound by IHL and human rights law

IHL binds all parties to an armed conflict and thus establishes an equality of rights and obligations
between the State and the non-State side for the benefit of everyone who may be affected by their
conduct. Human rights law explicitly governs the relationship between a State and persons who are on its
territory and/or subject to its jurisdiction (an essentially 'vertical' relationship), laying out the obligations
of States vis à vis individuals across a wide spectrum of conduct. Thus, human rights law binds only
States, as evidenced by the fact that human rights treaties and other sources of human rights standards
do not create legal obligations for non-State armed groups.

Substantive scope of application

IHL and human rights law share common substantive rules (such as the prohibition of torture), but they
also contain very different provisions. IHL deals with many issues that are outside the purview of human
rights law, such as the status of 'combatants' and 'prisoners of war', the protection of the red cross and red
crescent emblems and the legality of specific kinds of weapon. Similarly, human rights law deals with
aspects of life that are not regulated by IHL, such as the freedom of the press, the right to assembly, to
vote, to strike, and other matters. Furthermore, there are areas that are governed by both IHL and human
rights law, but in different – and sometimes contradictory – ways. This is especially the case for the use
of force and detention.

Qs. Protection of wounded and sick in Armed Forces in the Field and at Sea

Ans. Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in
the field was held on 12 August 1949 as first convention. Geneva Convention for the amelioration of the
condition of wounded, sick and shipwrecked members of armed forces at sea was held on 12 August 1949
as second convention.

Generally speaking, the Second Geneva Convention of 12 August 1949 is almost identical with the First.
The main difference between the two is that the second concerns the wounded, sick and shipwrecked
 7

members of armed forces at sea while the first relates to the wounded and sick in armed forces in the
field. There is additional Protocol I, Part II which extends this protection to all wounded, sick and
shipwrecked persons, whether they be civilians or members of the armed forces.

Main provision

1. Field of application of the two Conventions and the Protocol

Generally speaking, the Second Geneva Convention of 12 August 1949 is almost identical with the First.
The main difference between the two is that the second concerns the wounded, sick and shipwrecked
members of armed forces at sea while the first relates to the wounded and sick in armed forces in the
field. Protocol I, Part 11, extends this protection to all wounded, sick and shipwrecked persons, whether
they be civilians or members of the armed forces.

2. Definition of protected persons I (1)

The terms " wounded " and " sick " mean military or civilian persons in need of medical care and who
refrain from any act of hostility. The term " shipwrecked " means military or civilian persons in a peri
lous situation at sea or on any other waters following a misfortune which has befallen them and who
refrain from any act of hostility.

3. Protection, treatment and care

All wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. [P.
I, 10 ] In all circumstances, they shall be treated humanely and shall receive, to the fullest possible extent
and with the least possible delay, the medical care and attention required by their condition. There shall
be no distinction between them on any other grounds. Women shall be treated with all the particular
consideration due to their sex.[I, 12; II, 12; P. I, 10 ]

Wounded, sick and shipwrecked combatants who are captured become prisoners of war. Until their
recovery or their disembarkation they will benefit from the provisions of Conventions I or II and III.

4. Search for the wounded, dead and missing

The general principle governing this section is, first and foremost, the right of families to know the fate of
their relatives. [P. I, 32 ] At all times, and particularly after an engagement, Parties to a conflict must
immediately take all possible measures to search for and collect the wounded, sick and shipwrecked, to
protect them against pillage and ill-treatment and ensure their adequate care, as well as to search for the
dead and prevent their being despoiled.[I, 15; II, 18; IV, 16 ]

The Conventions specify that Parties to a conflict must ensure that burial, cremation or burial at sea of the
dead, carried out individually as far as circumstances permit, is preceded by a careful and, if possible,
medical examination of the bodies with a view to confirming death, establishing identity and making
possible a report.[I, 17; II, 20 ]

In addition, as soon as circumstances permit, and at the latest from the end of active hostilities, each Party
to the conflict must search for persons who have been reported missing by an adverse Party.[P. I, 33 ]
 8

5. Recording and forwarding of information

Parties to a conflict must record all available particulars which could help to identify the wounded, sick
and dead who have fallen into their hands: the Power on which they depend or nationality, regimental
number, surname and first name, date of birth, date and place of capture and the nature of actions taken
with regard to the individuals concerned, etc. This information is to be forwarded as soon as possible to
the Information Bureau provided for in Convention III for transmission to the adverse Party, particularly
through the intermediary of the Central Tracing Agency of the International Committee of the Red
Cross (CTA). When this information is not channelled through the ICRC and its central Agency, each
Party to the conflict will ensure that this information is also supplied to the Central Agency provided for
in Convention III. [I, 16; II, 19; P. I, 33; III, 122; IV, 136 ]

6. Role of the civilian population and relief organizations; role of neutral ships

The civilian Population must respect the wounded, sick and shipwrecked, even if they belong to the
adverse Party, and shall commit no act of violence against them. The civilian population and relief
organizations, such as National Red Cross and Red Crescent Societies, will be authorized, even in
invaded or occupied regions, to collect and care for the wounded, sick and ship wrecked, even if they are
enemy parachutists or guerillas. Nobody may be harassed, prosecuted or convicted for such humanitarian
action.[I, 18; P. I, 17 ]

Furthermore, the competent authority may appeal to the civilian population and the relief organizations to
collect the wounded, sick and shipwrecked, to search for the dead and report where they were found.

The same applies in naval warfare to neutral merchant vessels, yachts or other craft which may be called
upon, by the Parties to the conflict, to take on board and care for the wounded, sick and shipwrecked and
also to collect the dead.[II, 21 ]

7. Medical units

Military or civilian medical units are protected by the Conventions and the Protocol. Such units comprise
all buildings or fixed installations (hospitals and other similar units, blood transfusion and preventive
medicine centers, medical depots and stores) and mobile units (quarantine stations, tents, open air
installations, vehicles assigned to medical purposes) [I, 19; P. I, 8, 9, 12 ]

8. Medical transport

Medical transport " means the conveyance by land, water or air of the wounded, sick and shipwrecked,
medical and religious personnel and medical equipment protected by the Conventions and the
Protocol. Any means of transport may be used, whether military or civilian, permanent or temporary,
assigned exclusively to this purpose and placed under the control of a Party to the conflict. [P. I, 8 ]

Medical transport by land (ambulances) must be respected and protected in the same way as mobile
medical units. Military ambulances falling into enemy hands are subject to the laws of war on condition
that the Party capturing them assumes responsibility for the sick and wounded they contain. Medical
transport by water is carried out either by hospital ships or other medical ships and craft. The following
 9

vessels are protected by the Conventions and the Protocol on condition that their names and descriptions
have been notified to the Parties to the conflict:

I. military hospital ships of the Parties to the conflict;

II. hospital ships used by National Red Cross Societies or other officially recognized aid Societies or
by private persons, including those from neutral countries;
III. hospital ships made available to a Party to the conflict by a neutral State or by an impartial
international
IV. Medical transport by air (medical aircraft) carried out in areas not controlled by an adverse Party
shall be respected and protected. In contact or similar zones, medical aircraft operate at their own
risk, unless prior agreement has been reached between the Parties concerned. They must,
however, be respected, even in the absence of such agreement, after they have been recognized as
medical aircraft. When flying over an area controlled by an adverse Party, protection is subject to
the prior agreement of this Party.

9. Medical personnel

Medical and religious personnel of the Parties to the conflict, whether military or civilian, shall be
respected and protected. Such personnel (doctors, nurses, stretcher-bearers, etc.) should be assigned,
either on a permanent or temporary basis, exclusively to medical purposes or to the administration and
operation of medical units or medical transport facilities (administrators, drivers, cooks, etc.). Religious
personnel comprise military or civilian persons, such as chaplains, who are exclusively engaged in the
work of their ministry.

Protected personnel are the following:

I. Military or civilian medical personnel of the Parties to the conflict, including those belonging to
civil defence organizations;
II. medical personnel of National Red Cross and Red Crescent Societies and other national aid
Societies recognized by a Party to the conflict;
III. religious personnel attached, either permanently or temporarily, to the armed forces, to medical
units or transport, or to civil defence organizations.

10. Medical mission

Finally, the Protocol provides that nobody may be punished for having carried out medical activities
compatible with medical ethics, regardless of the beneficiaries of this activity, nor be compelled to carry
out acts contrary to the rules of medical ethics or to refrain from carrying out acts required by these rules.

11. Emblem and signals

The sign of the red cross or red crescent must be displayed on the flags, buildings, installations and
mobile formations of medical units, on their means of transport, as well as on armlets, clothes and
headgear of medical and religious personnel. It will be as large as the circumstances require.

In naval warfare, ships and craft entitled to the protection the Convention will be marked as follows:

I. all exterior surfaces must be white,.

 10

II. one or more dark red crosses, as large as possible, must painted on each side of the hull as well
as on horizontal surfaces, so as to afford the greatest possible visibility from the sea and from the
air. A white flag with a red cross shall be flown at the mainmast, as high as possible.
III. The international Red Cross organizations and their duly authorized personnel are permitted to
use the emblem of the red cross on a white ground at all times.

Apart from these regulations, the use of the emblem or the designation " red cross " or " Geneva cross " ,
or any sign or designation constituting an imitation, shall be prohibited at all times; the necessary
measures will be taken to prevent and repress any abuse of these distinctive signs. The perfidious use of
the emblem of the red cross (and other protective signs or signals) is a grave breach.[I, 53, 54; II, 45; P. I,
18, 85 ]

Qs. Protection of the Prisoners of war

Prisoners' rights in international law are found in a number of international treaties. For the most part
these treaties came into existence following the two World Wars and the body of law continues to be
added to and amended.

The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of
the Geneva Conventions. The Geneva Convention relative to the Treatment of Prisoners of War was first
adopted in 1929, but significantly revised at the 1949 conference. It defines humanitarian protections for
prisoners of war. There are 196 state parties to the Convention.

The events of World War I and World War II had a profound effect on international law due to the
widespread denial of civil rights and liberties on the basis of racial, religious, and political discrimination.
The systematic use of violence, including murder and ultimately genocide, the use of slave labor, abuse
and murder of prisoners of war, deportations, and confiscation of property forced changes to the status
quo. Over the proceeding decades, large scale changes began to occur in all areas of international law, and
prisoners’ rights were no exception

Definition of Prisoners of war

The Third Geneva Convention defines humanitarian protections for prisoners of war. Prisoners of war are
defined as:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer
corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that they fulfill the following conditions:

I. that of being commanded by a person responsible for his subordinates;

II. that of having a fixed distinctive sign recognizable at a distance;
III. that of carrying arms openly;
IV. that of conducting their operations in accordance with the laws and customs of war.
 11

(3) Members of regular armed forces who profess allegiance to a government or an authority not
recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian
members of military aircraft crews, war correspondents, supply contractors, members of labour units or of
services responsible for the welfare of the armed forces, provided that they have received authorization
from the armed forces which they accompany, who shall provide them for that purpose with an identity
card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews
of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any
other provisions of international law.

6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms
to resist the invading forces, without having had time to form themselves into regular armed units,
provided they carry arms openly and respect the laws and customs of war.

Protection of Prisoners Of War

Purpose of the detention of prisoners of war is simply to remove them from the battlefield

The purpose of the detention of prisoners of war is simply to remove them from the battlefield, and not as
a means of punishment. The detention of prisoners of war on this basis is an exception to the general
principle of human rights law that a person cannot be deprived of their liberty if they have not been found
guilty of a crime.

POW must be treated in accordance with the humanitarian provisions of the Third Convention.

As soon as a combatant falls into the hands of the enemy in an IAC, the rules governing the conduct of
hostilities cease to apply and the protective POW framework described in this article begins to apply.
They may therefore no longer be made the subject of attack and must be treated in accordance with the
humanitarian provisions of the Third Convention.

POW should not subject of medical or scientific experiments, a gruesome practice

The general principle upon which the protective regime under the Third Geneva Convention operates is
that prisoners of war must at all times be humanely treated. Acts causing death or serious injury to
prisoners of war are prohibited, as is making them the subject of medical or scientific experiments, a
gruesome practise to which thousands were subjected during World War II.

Prisoners of war must be protected at all times, particularly against acts of violence and against
public curiosity

Prisoners of war must be protected at all times, particularly against acts of violence and against public
curiosity, and are entitled in all circumstances to respect for their persons and honor. Reprisals against
POWs are prohibited. Women “shall be treated with all the regard due to their sex” and must benefit from
treatment as favorable as that granted to men, and all POWs must be afforded equality of
 12

treatment without adverse distinction based on race, nationality, religion, political opinion, or similar
criteria.

Not bound to give any information other then the identification

Prisoners of war, not being nationals of the detaining power, are not bound to it by any duty of
allegiance and naturally cannot be obliged to provide it with any assistance nor any information other
than that required to identify them and register their capture.

Prisoners of war cannot be punished for the mere fact that they participated in hostilities

Prisoners of war cannot be punished for the mere fact that they participated in hostilities combatant
privilege provides an immunity from being prosecuted for using force against persons or objects in a
manner which is consistent with international humanitarian law. They can therefore not be prosecuted for
acts such as the lawful killing or wounding of an enemy combatant, but can be tried for war crimes or
“regular” crimes unrelated to the conflict.

Prisoners of war must be sheltered from aerial bombardment

Prisoners of war must be interned only on land, away from the battlefield, sheltered from aerial
bombardment and other hazards of war to the same extent as the local civilian population. They must be
given quarters as favourable as that given to the detaining power’s own forces who are billeted in the
same area, including with regards to bedding, blankets, and floor space per person. Men and women are
to be dormed separately.

Medical attention

The detaining power must provide, free of charge, for POWs’ maintenance and for medical
attention required by their state of health. Prisoners of war must receive medical inspection at least once
per month and at all times can present themselves to medical authorities for examination. Camps must
have adequate infirmaries and, if necessary, isolation wards, and prisoners of war with a serious disease
or requiring special treatment must be admitted to a military or civilian medical unit for treatment.

Clothing, underwear, and footwear must be provided by the detaining power\

Clothing, underwear, and footwear must be provided by the detaining power, taking into account the local
climate. All sanitary measures must be taken to ensure camps are clean and healthy and to prevent
epidemics, including separate men’s and women’s conveniences, which must be kept clean and available
day and night. Camps must be furnished with baths and showers, and prisoners of war must be given soap
and water for their personal toilet and washing their laundry.

Prisoners of war must be given food of a quantity, quality, and variety

Prisoners of war must be given food of a quantity, quality, and variety to keep them in good health and to
prevent weight loss. (This standard isn’t included for cosmetic reasons; a reference to a prisoner’s weight
was considered the best way to measure whether proper rations were being provided—the alternative
standards considered were that either that daily rations would have to satisfy a prescribed caloric content
 13

or that they would need to be comparable with the rations of the local civilian population.) Sufficient
drinking water must be supplied.

Prisoners of war must be granted freedom of exercise of religious

Prisoners of war must be granted freedom of exercise of religious duties and provided with adequate
premises where religious services may be held. This is a crucial requirement considering that many armed
conflicts are fought between parties holding different beliefs, and, of course, often because of their
differences in belief.

Prisoners of war are subject to the laws, regulations, and orders in force

Prisoners of war are subject to the laws, regulations, and orders in force in the armed forces of the
detaining power. Judicial and disciplinary action can be taken against a prisoner for a breach of those
applicable laws. If a POW is alleged to have committed an offense, they may only be tried by a military
court unless existing laws expressly permit trial by a civilian court, and they must always benefit from
essential guarantees of independence and impartiality—including rules against double jeopardy,
against retroactive laws, the specification of charges and relevant legal provisions, rights and means of
defense including the calling of witnesses and assistance of qualified counsel and an interpreter, the right
to written reasons for judgement, and the right to an appeal.

The labor undertaken by prisoners of war cannot be unhealthy or dangerous

The labor undertaken by prisoners of war cannot be unhealthy or dangerous, workers must receive the
necessary training, and conditions must be suitable and humane, especially as regards accommodation,
food, clothing, and equipment. National legislation concerning the protection of labor, and in particular
safety regulations, must be applied. Workers must get one hour’s lunch break per day, plus one period of
24 consecutive hours’ rest per week (preferably on a Sunday), and earn a paid eight-day break after
notching up one year of work. Officers may ask for suitable work but may not be compelled to do so,
while non-commissioned officers can only be required to do supervisory work.

All prisoners of war must be paid for their time in internment.

All prisoners of war must be paid for their time in internment. The detaining power must grant them a
monthly advance of pay, which it tallies up and recoups from the POWs’ home country at the close of
hostilities.

Right of complaint

All prisoners of war have the individual right to make complaints and requests to the detaining power
regarding their conditions of captivity. In addition, prisoner of war representatives are entrusted with
representing their colleagues before military authorities and the ICRC, and to further their physical,
spiritual, and intellectual well-being.

ICRC to visit and interview all POW

 14

The ICRC is given the mandate under the Third Geneva Convention to visit and interview all prisoners of
war in their place of internment, imprisonment, or labor (and is given a similar mandate with respect to
civilians protected under the Fourth Convention), with a view to monitoring their standard of treatment.

Qs. Protection of Civilian Population

Ans. Introduction

The civilian population is made up of individual civilians, in other words, individuals who do not belong
to any of the various categories of combatants. Under international humanitarian law, civilians in general
are granted protection from the dangers of military operations, and certain categories of civilians are
entitled to reinforced protection.

Definition

International humanitarian law is based on the principle of the distinction between civilians (and civilian
objects) and combatants (and military objectives). The civilian is defined in opposition to the combatant.
Literally, a “civilian person” is any individual who is not a member of armed forces. In international
armed conflicts, the notion of “member of the armed forces” initially contained in the Third Geneva
Convention of 1949 was expanded in 1977 by Additional Protocol I to grant equivalent protection to all
those engaged in combat. Therefore, a civilian is any individual who is not a member of one of the
following groups:

I. the regular armed forces, even one that professes allegiance to a government or authority not
recognized by the adverse power;
II. the armed forces of a party to the conflict, as well as militias or volunteer corps forming part of
such armed forces;
III. all organized groups and units, as long as these groups and units are under a command that is
responsible for the conduct of its subordinates, even if the party to the conflict to which it
responds is represented by a government or authority not recognized by an adverse party. This
last category includes organized resistance movements and other small armed groups (GCIII Arts.
4.a.1–3, 4.a.6; API Arts. 43, 50).

The customary international humanitarian law applicable to international conflicts now recognizes that
“the armed forces of a party to the conflict are made up of all the organized armed forces, groups and
units that are under the authority of a commander responsible for the conduct of his subordinates” (Rule
4).

Protection of the Civilian Population

International humanitarian law only recently accorded specific protection to civilians. Before 1949, the
main international conventions only regulated the conduct of hostilities and the fate of wounded, sick, or
shipwrecked combatants or prisoners of war. The protection granted to civilians was only an indirect
result of the general obligation to attack only military objectives and the specific obligation of combatants
to wear a military uniform and to conduct military operations openly.
 15

Since 1949, the Fourth Geneva Convention specifically protects the civilian population. It is aimed
particularly at protecting civilians from acts carried out by the adverse party to the conflict. In this
respect, humanitarian law establishes a general system of protection for civilians, and it reinforces this
protection in certain specific situations—such as in occupied territories or in cases of internment or
evacuation—or for certain specific categories of persons, considered more vulnerable—such as children,
sick and wounded persons, or detainees (all of GCIV, API Arts. 48–56, APII Arts. 13–18).

In 1977, Additional Protocol I to the Geneva Conventions reinforced the protection foreseen for the
overall civilian population in the context of international armed conflicts. Additional Protocol II to the
Geneva Conventions extended this protection to civilians in non-international armed conflicts, in which
they are particularly exposed to danger because of the increased difficulty of distinguishing between
combatants and civilians in such conflicts and because they oppose individuals to their own govenment
and army.

Protection of Civilians in International Armed Conflicts

General Protection of the Population against Attacks

I. The respect for and protection of the civilian population and civilian objects rests on the
obligation of the parties to the conflict to distinguish between the civilian population and
combatants, on one hand, and between civilian objects and military objectives, on the other (API
Art. 48). This obligation is one of the foundations of humanitarian law.
II. All civilians, without any adverse distinction and in all situations, must be protected from the
effects of military operations (GCIV Art. 13). Hence, they may not be the target of fighting or
attacks, and they have the right to receive the necessary assistance.
III. This general system of protection is defined in Article 51 of Additional Protocol I. Articles 52 to
56 protect civilian objects, including those indispensable to the survival of the civilian population
(API Art. 54). These provisions are reinforced by precise rules and definitions relating to the
concept of attacks (API Arts. 49–51) and by the specific precautions that must be taken during
attacks (API Art. 57): ▸ Attacks
IV. The civilian population, as such, must not be the object of attacks. Acts or threats of violence, the
primary purpose of which is to spread terror among the civilian population, are prohibited (API
Art. 51.2).
V. Attacks that may hit military objectives and civilians or civilian objects indiscriminately are
prohibited. “Indiscriminate attacks” are defined as those not directed at a specific military
objective, those that employ a method or means of combat that cannot be directed at a specific
military objective, or those that employ a method or means of combat the effects of which cannot
be limited (API Art. 51.4).
VI. Attacks in the form of reprisals may not be aimed at the civilian population (API Art. 51.6).
VII. Civilians must not be used to shield military objectives or operations or to render them immune
from attacks (API Art. 51.7).

Such protection also covers civilian objects, which also must not be the object of acts of violence, direct
or indiscriminate attacks, or reprisals (API Art. 52). This protection also specifically concerns objects
indispensable to the survival of the population (which may not be attacked, destroyed, removed, or made
 16

the object of reprisals; API Art. 54), cultural objects and places of worship (Art. 53), the natural
environment (Art. 55), and works and installations containing dangerous forces (Art. 56).

The Right to Receive Assistance

The system of protection regulates the humanitarian assistance to which civilians are entitled if they do
not have sufficient food, medical supplies, clothing, bedding, means of shelter, and other supplies
essential to their survival. The relief actions foreseen in Protocol I address the specific case of civilians in
occupied territory, but they also apply to all other cases in which the civilian population is affected by a
situation of armed conflict (API Arts. 69–70).

Additional Protection for Specific Categories of Protected Persons

Humanitarian law specifies that civilians in the power of a party to the conflict—in particular, a party of
which they are not a national—must be granted reinforced protection, as established by the Fourth
Geneva Convention and Additional Protocol I. These categories of protected persons are:

I. civilian populations in occupied territories (GCIV Arts. 47–77, API Arts. 68–71);
II. civilian detainees in occupied territories (GCIV Arts. 64–77);
III. civilians in the power of a party to the conflict (API Arts. 72–75);
IV. civilian internees (GCIV Arts. 79–135);
V. foreigners, refugees, and stateless persons (GCIV Arts. 35–46);
VI. women and children (API Arts. 76–78);
VII. wounded and sick persons, who must be cared for without adverse discrimination or delay;
medical personnel, installations, and means of transportation, which must be respected and must
be able to carry out their work despite any hostilities (GCIV Arts. 16–26, Part II; API Arts. 10–
31; APII Arts. 7–11);
VIII. pregnant women, newborn infants, and infirm persons, who are included in the humanitarian law
definition of “wounded and sick,” in order to better ensure their protection (API Art. 8);
IX. Relief and humanitarian personnel, who are always protected as civilians (API Art. 71).

Protection of Civilians in Non-international Armed Conflicts

The distinction between combatants and civilians tends to be less straightforward during internal armed
conflicts; therefore, Additional Protocol II does not establish a clear definition of combatants on one hand
and civilians on the other. Instead, it only distinguishes between those who are fighting and those who are
not, or no longer, fighting.

Additional Protocol II hence assumes that the entire population is civilian and therefore must be granted
the protection established by humanitarian law, “unless and for such time as they take a direct part in
hostilities” (APII Art. 13.3).

In non-international armed conflicts, humanitarian law establishes that individuals may belong to the
category of civilians yet participate directly in hostilities at certain times. Additional Protocol II
establishes that such individuals shall benefit from the protection granted to civilians. This protection may
be suspended only for the duration of their direct participation in hostilities.
 17

General Protection of the Civilian Population

I. Articles 13 to 18 of Additional Protocol II define the protection and means of protection that must
be adopted for the benefit of civilians.
II. “The civilian population and individual civilians shall enjoy general protection against the
dangers arising from military operations.” To this effect, they must never be the object of attacks
or of any acts or threats of violence the primary purpose of which is to spread terror (APII Art.
13).
III. Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack,
destroy, or remove objects indispensable to the survival of the civilian population (APII Art. 14).
IV. Works or installations containing dangerous forces—namely, dams, dikes, nuclear plants, and
electrical generating stations—must never be the target of an attack if such an attack may cause
the release of dangerous forces and consequently cause severe losses among the civilian
population (APII Art. 15).
V. Cultural objects and places of worship that constitute the cultural or spiritual heritage of peoples
must never be attacked or used in support of the military effort (APII Art. 16).
VI. “The displacement of the civilian population shall not be ordered for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons so demand”
(APII Art. 17). Thus, it must respect strict conditions. ▸ Population displacement

The Right to Receive Assistance

Exclusively humanitarian and impartial relief actions must be undertaken for the civilian population if it
is suffering undue hardship owing to a lack of the supplies essential for its survival, such as food and
medical supplies.

Additional Protection for Specific Categories of Protected Persons

Special provisions reinforce the protection, in non-international armed conflicts, for:

I. persons deprived of their liberty (detainees) for reasons related to the conflict (APII Art. 5)
II. wounded, sick, and shipwrecked persons (GCIV Art. 3, APII Art. 7
III. medical and religious personnel (APII Art. 9).
 18

Unit-II

Qs. Protection of Women and Children

Introduction

The legal protection of children was introduced into international humanitarian law after the Second
World War. Experience during that conflict had, in fact, pointed to the urgent need to draw up an
instrument of public international law for protecting civilian population in wartime. The results of the
ICRC's efforts in this field led to the adoption of the 1949 Fourth Geneva Convention relative to the
protection of civilian persons in time of war. From that time on, children, as members of the civilian
population, were entitled to benefit from the application of that Convention. Moreover, the first
international humanitarian law regulations concerning armed conflicts not of an international character,
contained in article 3, common to the four 1949 Geneva Conventions, were drawn up at the 1949
Diplomatic Conference. Here again, children were protected, in the same way as all " persons taking no
active part in the hostilities " .

The protection of children in the Geneva Conventions and their Additional Protocols

International humanitarian law provides general protection for children as persons taking no part in
hostilities, and special protection as persons who are particularly vulnerable. Moreover, children taking
part in hostilities are also protected. The various aspects of the legal protection of children will be
examined one after the other in the following paragraphs.

Right to care and aid

As already mentioned, Protocol I lays down that the parties to an international armed conflict should
provide children with care and aid. Many of the provisions of the Fourth Geneva Convention take into
account the particular needs of children. An Occupying Power must facilitate the proper working of
institutions devoted to the care of children in occupied territory (article 50).

The child and his family

In the light of the conclusions of a UNESCO study on children and warfare, the provisions of
international humanitarian law which aim at preserving family unity during armed conflicts take on a
special significance. Protocol I states the general duty of High Contracting Parties and parties to a conflict
to facilitate the reuniting of families dispersed as a result of an international armed conflict (article 74).

The cultural environment of the child

While a child remains with his family, he continues to benefit from the cultural environment to which he
is accustomed. By protecting a child's family, international humanitarian law is also protecting the moral
values, religion, culture and traditions in which he has been brought up. Fourth Geneva Convention and
those of Protocol I subscribed to the principle that, in international armed conflicts, children should
benefit from an environment as close as possible to that to which they are accustomed. Thus, in the
Fourth Geneva Convention, the parties to a conflict shall ensure in all circumstances that children under
 19

fifteen who are orphaned or separated from their families may continue " the exercise of their religion and
their education”.

The education of children

In addition to the provisions mentioned above on the education of children who are orphaned or separated
from their families, the Fourth Geneva Convention imposes certain duties of a general nature concerning
the education of children on parties to an international armed conflict. The Occupying Power must
facilitate the proper working of all institutions devoted to the education of children (article 50). The
Detaining Power shall ensure the education of interned children and young people, who shall be allowed
to attend schools (article 94).

In the case of non-international armed conflicts, Protocol II provides that children " shall receive an
education, including religious and moral education, in keeping with the wishes of their parents, or in the
absence of parents, of those responsible for their care " (article 4, 3, a).

The personal rights of the child

The Fourth Geneva Convention prohibits an Occupying Power from changing a child's personal status
(article 50). Therefore, neither his nationality nor civil status should be changed if his country is occupied
during an international armed conflict. This provision supplements, with regard to children, the essential
principles concerning respect for the human person and for family rights set down in article 27 of the
same Convention.

Respect of preferential treatment for children

Although the Fourth Geneva Convention does not state as a principle that special protection should be
given to children, two of its provisions do stipulate that preferential treatment granted to children by
national legislations shall continue during international armed conflict. Indeed, countries at war very often
issue decrees for the benefit of those who are particularly- vulnerable and who require special treatment:
additional food ration cards, facilities for medical and hospital care, social assistance, protection against
the effects of war, etc. Children under fifteen years and mothers of children under seven years who are
nationals of the enemy are entitled to any preferential treatment which is granted to the same categories of
nationals of the State concerned (article 38).

Arrested, detained or interned children

.Under Protocol I, children who are arrested, detained or interned, must be held in quarters separate from
the quarters of adults, except where families are accommodated as family units (article 77, 4).

Children and the death penalty

The authors of the Fourth Geneva Convention and those of the Additional Protocols fixed the minimum
age limit for the execution of the death penalty at eighteen years.

With regard to international armed conflicts, Protocol I forbids the execution of the death penalty for an
offence related to the armed conflict on persons who had not attained the age of eighteen years at the time
the offence was committed (article 77, 5). The Fourth Geneva Convention prohibits the death penalty to
 20

be pronounced on a protected person of an occupied territory who was under eighteen years of age at the
time of the offence (article 68).

In non-international armed conflicts, Protocol II forbids the death penalty to be pronounced on persons
who were under the age of eighteen years at the time of the offence (article 6, 4).

The Protection of Women in International Humanitarian Law

Introduction

Since the number of women who actually participated in war was insignificant until the outbreak of
World War 1, the need for special protection for them was not felt prior to that time. This does not imply
however that women had previously lacked any protection. From the birth of international humanitarian
law, they had had the same general legal protection as men. If they were wounded, women were protected
by the provisions of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded
in Armies in the Field; if they became prisoners of war, they benefited from the Regulations annexed to
the Hague Conventions of 1899 and 1907 on the Laws and Customs of War on Land.

Protection of women as members of the civilian population

Like all civilians, women are protected both against abusive treatment by the Party to the conflict in
whose power she finds herself and against effects of hostilities: "A civilian is any person who does not
belong to the armed forces" (Article 50, P. 1).

Protection against abuses by the Party to the conflict into whose power women have fallen

In an international armed conflict , women are among the persons protected by the Fourth Geneva
Convention relative to the protection of civilian persons in time of war. Under these conditions, they
benefit from all the provisions which state the basic principle of humane treatment, including respect of
life and physical and moral integrity, particularly forbidding coercion, corporal punishment, torture,
collective penalties, reprisals, pillage and the taking of hostages. Furthermore, in the event of infractions
committed in relation to the conflict, women have the right to trial by an independent and impartial court
established by law respecting the generally recognized principles of judicial procedure.

Pregnant women and maternity cases

In an international armed conflict, these women benefit from supplementary protection. Protocol I
specifies that "pregnant women and mothers having dependent infants who are arrested, detained or
interned for reasons related to the armed conflict, shall have their cases considered with the utmost
priority" (Art. 76, para 2). This is intended to make sure that pregnant women are released as rapidly as
possible.

Mothers of young children

Protocol I, as in the case of expectant or nursing mothers, asserts that "mothers having dependent infants
who are arrested, detained or interned for reasons related to the armed conflict shall have their cases
considered with the utmost priority" (Art. 76, para 2). The term " mothers having dependent infants " has
a wider meaning than " nursing mothers " , the wording which had been previously proposed. The authors
 21

of the Protocols were unable to agree on the age when children cease to be dependent on their mothers.
Since various provisions in the Fourth Convention refer to mothers of children under the age of 7 years
(preferential treatment in Art. 50

Women and the death penalty

Nothing is said about this subject in the Conventions. Protocol I makes up for this deficiency, drawing
inspiration from the International Covenant on Civil and Political Rights which entered into effect on 23
March 1976. Its Art. 6, para 5, provides that a death penalty must not be executed on pregnant women. It
was not possible however for the authors of the Protocols to prohibit absolutely in the event of
an international armed conflict, the pronouncement of the death penalty on pregnant women and the
mothers of young children. Such a prohibition would run counter to specific provisions in the national
legislation of a number of countries. Nevertheless, international humanitarian law recommends that such
pronouncements be avoided to the utmost possible extent.

Qs. Protection of medical personnel, hospitals, ambulances, etc., and cultural property.

Medical Personnel

According to the 1949 Geneva Conventions and their 1977 Additional Protocols, “medical personnel” are
persons assigned exclusively to medical duties, whether such assignments are permanent or temporary.
Such medical purposes include:

I. the search for, collection, transportation, diagnosis, or treatment—including first aid treatment—
of the wounded, sick, and shipwrecked;
II. the prevention of disease;
III. the management and administration of medical units or means of transportation.

Launching an intentional attack against medical personnel in the context of an international or non-
international armed conflict is a war crime, punishable under international humanitarian law and
international criminal law (Arts. 8.2.b.xxiv and 8.2.e.ii of the Rome Statute of the International Criminal
Court). It also constitutes a grave breach to the Geneva Conventions when committed in the context of an
international armed conflict.

The term also designates the persons assigned to medical units, which are structures such as hospitals and
other similar units dedicated to the aforementioned medical purposes. It also covers the military and
civilian medical personnel of a party to a conflict, the medical personnel of international relief
organizations, and the one of civil defense organizations (API Art. 8).

In times of conflict, humanitarian law establishes a multitude of provisions aimed at protecting members
of medical personnel in the exercise of their functions:

I. They must be respected and protected at all times, in all circumstances (APII Art. 9).
II. They are authorized to wear the distinctive emblem of the Red Cross and must take the necessary
measures to be identifiable to the authorities (APII Art. 12).
 22

III. They come under the same protection regime as the civilian population (GCIV Arts. 27–141) but
have additional rights so as to be able to accomplish their mission despite the conflict.
IV. Such personnel shall be given all necessary assistance in carrying out their functions and will not
be compelled to carry out tasks that are not compatible with their missions (API Art. 15, APII
Art. 9).
V. No one may require that they give priority to any one or group of persons, except on medical
grounds (API Art. 15, APII Art. 9).
VI. They must have freedom of movement so as to be able to collect the sick and wounded. Parties to
a conflict have the obligation to facilitate medical missions and may not hinder the activities of
such personnel (GCIV Art. 56).
VII. Civilian medical personnel must have access to any place where their services are essential,
subject to supervisory and safety measures that the relevant party to the conflict may deem
necessary (API Art. 15).
VIII. Parties to a conflict must give civilian medical personnel all available assistance in areas where
their services are disrupted because of combat activity (API Art. 15).
IX. Medical personnel must be allowed access to the scene of a combat to search for and collect the
wounded and sick. This provision exists in the case of both international and internal conflicts:
“Whenever circumstances permit and particularly after an engagement, all possible measures
shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to
protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the
dead, prevent their being despoiled, and decently dispose of them” (APII Art. 8, GCI Art. 15).
X. In any situation of armed conflict, members of medical personnel may not be punished for
activities carried out, no matter what the circumstances may have been and regardless of the
person benefiting from their actions, as long as these were compatible with medical ethics. No
one may ever be harassed for having collected and given care to wounded or sick persons (GCI
Art. 18, API Art. 16, and APII Art. 10). Medical personnel may not be compelled to carry out
acts contrary to the rules of medical ethics or to breach doctor–patient privileged confidentiality
(API Art. 16, APII Art. 10).
XI. In occupied territory, the occupying power has the duty to ensure and maintain all medical
activities and must allow medical personnel to accomplish their missions (GCIV Art. 56).
XII. Every place of internment must have an adequate infirmary. It is preferable for internees to have
the attention of medical personnel of their own nationality (GCIV Art. 91).

Rule 25 of the rules of customary international humanitarian law published by the ICRC in 2005 affirms
that “medical personnel exclusively assigned to medical duties must be respected and protected in all
circumstances. They lose their protection if they commit, outside their humanitarian function, acts
harmful to the enemy.”

Rule 26 provides that “punishing a person for performing medical duties compatible with medical ethics
or compelling a person engaged in medical activities to perform acts contrary to medical ethics is
prohibited.” Those rules are applicable in international and non-international armed conflicts.

Cultural property

Cultural property is generally protected as a civilian object. In addition, special care must be taken to
avoid any damage to cultural property, as it is among the most precious civilian objects; the need for such
 23

caution becomes even more important when the cultural property in question is a vital aspect of the
heritage of the people concerned.

Meaning of cultural property

The term ‘cultural property’ refers to any movable or immovable property dedicated to religion, art,
science, education or charitable purposes, or to historic monuments. Property of great importance to the
cultural heritage of every people – such as architectural or historic monuments, archaeological sites,
works of art, books or any building whose main and effective purpose is to contain cultural property, and
centres containing a large amount of cultural property – may display and can be recognized by the
emblem of the blue-and-white shield.

Legal basis

The legal basis for providing special protection for cultural property is found in the 1907 Hague
Regulations, the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed
Conflict and its Protocols, and in the Additional Protocols of 1977. The obligation to respect and protect
cultural property also exists in customary law governing both international and non-international armed
conflict.

In the obligation to respect and protect cultural property:

Respect --means that special care must be taken in military operations to avoid damage to cultural
property, unless they are turned into military objectives;

Protect-- means that all seizure of or destruction or willful damage done to cultural property is
prohibited. The occupying power must also prevent the illicit export of cultural property from occupied
territory and must return illicitly exported property to the competent authorities of the occupied territory.

There are, in addition, further obligations to respect and protect property that is considered of great
importance to the cultural heritage of every people.

I. The 1954 Hague Convention for the Protection of Cultural Property sought to reinforce the
protection for property that is considered of great importance to the cultural heritage of every
people by, first, encouraging the marking of such property with a blue-and-white shield.
II. Such property must not be the object of attack unless imperatively required by military necessity.
The Second Protocol to the 1954 Hague Convention clarifies that the waiver of imperative
military necessity may be invoked only when and for as long as:

(1) The cultural property in question has, by its function, been made into a military objective; and

(2) There is no feasible alternative for obtaining a military advantage similar to that offered by
attacking that objective.
 24

The Second Protocol further requires that the existence of such necessity be established at a
certain level of command and that in case of an attack, effective advance warning be given
whenever circumstances permit. It should be noted that Article 53, paragraph 1, of Additional
Protocol I and Article 16 of Additional Protocol II go even further: they do not provide for a
waiver in case of imperative military necessity. These articles cover only a limited amount of
very important cultural property, namely that which forms part of the cultural or spiritual heritage
of ‘peoples’ (i.e. mankind). The property covered by the Additional Protocols has to be of such
importance that it is sure to be recognized by everyone and may not even have to be marked.

III. The military use of such property – which is likely to expose it to destruction or damage – is
prohibited, unless imperatively required by military necessity. Here again, the Second Protocol to
the 1954 Hague Convention clarifies that the waiver of imperative military necessity may be
invoked to use cultural property for purposes that are likely to expose it to destruction or damage
only “when and for as long as no choice is possible between such use of the cultural property and
another feasible method for obtaining a similar military advantage.”
IV. The Second Protocol further requires that the existence of such necessity be established at a
certain level of command. It should be noted that Article 53, paragraph 1, of Additional Protocol I
and Article 16 of Additional Protocol II go even further: they do not provide for a waiver in case
of imperative military necessity.
V. Any form of theft, pillage or misappropriation of such property and all acts of vandalism directed
against it are prohibited.
VI. Emblem of the blue-and-white shield to indicate protection for property that is considered of
great importance to the cultural heritage of every people.

Qs. Limitations on the means and methods of warfare

Ans. Introduction

The right of parties to a conflict to choose means or methods of warfare is not unrestricted. IHL prohibits
the use of means and methods of warfare that are indiscriminate or that cause superfluous injury or
unnecessary suffering. Specific restrictions/prohibitions concerning means of warfare (weapons) and
prohibitions against methods of warfare have been derived from these principles.

Means of warfare
 25

The use of a specific weapon in armed conflict can be completely prohibited and the weapon itself
considered unlawful (e.g. anti-personnel mines, cluster munitions, chemical weapons). Alternatively, its
use may be restricted in certain situations (e.g. the prohibition against using airdelivered incendiary
weapons against a military objective situated in an area with a concentration of civilians).

Anti-personnel mines

Under the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
Personnel Mines and on their Destruction (1997), States must not under any circumstances use, develop,
produce, stockpile or transfer anti-personnel mines, or help anyone else to do so. They must also destroy
all existing stockpiles of anti-personnel mines and within a fixed time period, clear land where these
devices have been laid.

Cluster munitions

The Convention on Cluster Munitions (2008) prohibits the use, production, stockpiling and transfer of
cluster munitions (a bomb, shell, rocket or missile that releases a large number of small explosive sub
munitions). In addition to these prohibitions, States possessing cluster munitions are required to destroy
their stockpiles of these weapons and to clear land contaminated by remnants of cluster munitions
(unexploded cluster munitions and submunitions from a past conflict). There are also specific obligations
on providing assistance to victims of cluster munitions.

Other conventional weapons

The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May
Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW) of 1980 also contains
prohibitions against and restrictions on certain kinds of weapon:

I. Protocol I of the CCW prohibits the use of any weapon, the primary effect of which is to injure
by fragments that are not detectable in the human body by X-rays.
II. Protocol II prohibits or restricts the use of mines (both anti-personnel and anti-vehicle), booby-
traps and other similar devices. This Protocol was amended and new regulations added in 1996.
III. Protocol III regulates the use of incendiary weapons, or weapons that are primarily designed to
set fire to objects or to burn persons through the action of flame or heat, such as napalm bombs
and flame throwers.
 26

IV. Protocol IV prohibits the use and transfer of laser weapons specifically designed to cause
permanent blindness.
V. Protocol V requires the parties to a conflict to take measures to reduce the dangers posed by
explosive remnants of war (unexploded and abandoned ordnance).

Chemical and biological weapons

The international community banned the use of chemical and biological weapons after World War I (the
1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare). This ban was reinforced in 1972 (the Biological Weapons
Convention) and 1993 (the Chemical Weapons Convention) by prohibiting, in addition to their use, the
development, stockpiling and transfer of these weapons, and requiring that stockpiles be destroyed. The
Chemical Weapons Convention also prohibits the use of riot-control agents (e.g. tear gas) as a method of
warfare.

Nuclear weapons

There is no comprehensive or universal ban on the use of nuclear weapons. The Nuclear Non-
Proliferation Treaty of 1968 primarily aims to prevent the spread of nuclear weapons and to advance the
goal of nuclear disarmament.

However, in 1996, the International Court of Justice, in an advisory opinion, confirmed that IHL applied
to nuclear weapons, particularly the IHL principle of distinction and the prohibition against causing
unnecessary suffering. In applying these and related rules to nuclear weapons, the Court concluded that
“the threat or use of nuclear weapons would generally be contrary to the rules of international law
applicable in armed conflict.” The Court was however unable to decide whether, even in the extreme
circumstance of a threat to the survival of the State, the use of nuclear weapons would be legitimate.

In 2011, the Council of Delegates of the International Red Cross and Red Crescent Movement (consisting
of the ICRC, the International Federation of Red Cross and Red Crescent Societies and all the National
Red Cross and Red Crescent Societies) adopted a milestone resolution, “Working towards the elimination
of nuclear weapons,” which outlines the Movement’s position on nuclear weapons.

Methods of warfare
 27

A number of methods of warfare are specifically prohibited under treaty and customary IHL. A few
examples are given below.

Denial of quarter

Ordering that no quarter will be given and threatening an adversary therewith or conducting hostilities on
this basis is prohibited. An adversary’s forces must be given an opportunity to surrender and be taken
prisoner. Wounded soldiers must be respected and protected.

Pillage
Pillage – the forcible seizure of private property by an invading or conquering army from the enemy’s
subjects – is prohibited.

Starvation
Starving the civilian population as a method of warfare is prohibited. Attacking, destroying, removing or
rendering useless objects indispensable to the survival of the civilian population is also prohibited.

Perfidy
Killing, injuring or capturing an adversary by resort to perfidy is prohibited. Article 37 of Additional
Protocol I defines ‘perfidy’ as “acts inviting the confidence of an adversary to lead him to believe that he
is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed
conflict, with intent to betray that confidence.” This includes, for example, feigning injury or sickness in
order to attack an enemy combatant. Ruses of war, i.e. acts intended to confuse the enemy that do not
violate international law, and that respect the prohibition against perfidy, are not prohibited. This would
include, for instance, the use of camouflage, decoys, mock operations, and misinformation.

Qs. Implementation of International Humanitarian Law: Basic Issues

Ans. IHL is a part of public international law. Public international law is a broad set of treaties,
customary law, principles and norms. The framework traditionally regulated relationships only between
States. It has evolved, however, to cover a broad range of actors. IHL is notable in this regard, as it
recognizes obligations for both States and non-State armed groups that are parties to an armed conflict.

Applying Humanitarian Law

Humanitarian Law mandates the rules and regulations for protection to be provided under the following
situations:

International Armed Conflict –

 28

Protection is given to the following persons:

i) Land warfare – Wounded or sick military personnel and members of the armed forces’ medical services

ii) Naval Warfare – wounded, sick or shipwrecked military personnel and members of the naval forces’
medical services;

iii) Prisoners of war

iv)Civilian population which including foreign civilians, civilians in territories which have been occupied,
medical and religious personnel and civil defence units.

2. Non-International Armed Conflict –

Apart from the armed forces, protection is given to the following persons:

I. Wounded or sick fighters

II. People deprived of their freedom as a result of the conflict.
III. Civilian population.
IV. Medical and Religious Personnel

Due importance is to be given to the fact that the conditions applicable under Protocol II supersede those
under Article 3. Hence, International Humanitarian Law also becomes applicable to the armed forces,
whether they are actively involved or not in the conflict.

In conclusion, internal armed conflicts come under State sovereignty and hence the State is the authority
to devise rules and regulations in such type of conflicts which may not be in agreement with the rules and
regulations to be followed in an armed conflict. However, a minimum standard has been prescribed
pertaining to the rules and regulations during a conflict from which is binding on the States.

Rules and Regulations regarding assistance provided to the Victims of Armed Conflict and
Restoration of Family links.

The States who have become a party to the Conventions have agreed that the victims have a right to
receive basic necessities for their survival. The Additional Protocols of 1977 further enhanced these
rights. Thus, in an armed conflict, the right of assistance includes:

I. Consignments necessary for the survival of the civilian be passed without any hurdles.
II. Adequacy of supplies for the entire population should be ensured by the Occupying State.
III. In the event of inadequacy of supplies, relief from outside sources must be taken without any
discrimination and without inferring the same as an act of interference.
IV. On the other hand, in a non-international armed conflict, relief measures in the form of essential
supplies for the civilian population must be undertaken. It is mandatory to obtain consent of the
warring parties before the relief measures are undertaken. In modern times, the State must not
ignore its duty to provide humanitarian relief to all civilians.

Rights of Refugees and Internally Displaced Persons.

 29

Refugees are defined as those residents of a particular State who have left their residential State due to the
presence of a conflict. They are at the highest priority in the list of people who are given protection by the
United Nations High Commissioner for Refugees. Special Protection is provided to refugees which
recognizes the vulnerability of the refugees, in the absence of protection of their State of residence.

Internally Displaced Persons are those civilians who have not left their residential State in the event of a
conflict. They are considered as civilians and are protected by human rights law which is legislated by the
State and also by Humanitarian law in the event of on-going armed conflict. International humanitarian
law has laid down that no civilian shall be compelled to leave his place of residence unless the military
reasons so demand. In the event that the civilians are Internally Displaced persons, they have to be
protected from the hostilities of the war by the rules and regulations laid down in humanitarian law.

The following rules laid down in Humanitarian Law expressly prohibit the following:

I. Attacking civilians or civilian objects or conducting hostilities indiscriminately.

II. Destroying objects necessary for the survival such as food to be provided to the civilian
population.
III. Destruction of residences during the armed conflict.

Implementing International Humanitarian Law.

The objective of Humanitarian law is to mitigate the consequences of war particularly on those who are
not a part of the armed conflict. Additionally, Humanitarian law has also laid down rules and regulations
regarding the process to be followed during an armed conflict which is binding on all the States.
Implementing Humanitarian law is a big challenge for the nations today.

The term “implementation” seeks to cover all the means which are required to taken to ensure that all the
rules under Humanitarian Law are adhered to fully. Adoption the rules and regulations during both war
and peace time is required, so that both the civilians and military personnel become familiar with the
same and thereby are able to prevent violations of humanitarian law.

The rules and regulations set under Humanitarian Law are binding on all States. Apart from the States,
bodies such as National Red Cross or Red Crescent Society have the objective to ensure that there are no
violations in the rules and regulations set forth by Humanitarian law. Measures to deal with any violations
which may have taken place during a war is another objective of the Red Cross and Red Cresent Society.
Some of the important measures which can be taken to implement the rules and regulations effectively
are:

I. Translation of Conventions and Protocols into national language so that civilians and military
personnel become familiar with the same.
II. Passing of criminal legislation particularly dealing with war crimes.
III. Identification of persons, places and property to be protected by law.
IV. Establishing and regulating voluntary Aid Societies such as National Red Cross and Red
Crescent.
V. Preventing the misuse of emblems provided in the Conventions and Protocols.
VI. Guaranteeing fundamental rights to protected persons during armed conflict.
 30

VII. Appointment of trained and qualified personnel in Humanitarian law, particularly relating to the
appointment of legal advisors in the armed forces.
VIII. Taking the aid of Humanitarian Law whilst selecting military sites, whilst developing military
weapons and whilst employing military tactics.
IX. Measures to establish hospital zones and security zones.

Most of these measures would require the legislature to legislate the rules and regulations, while others
require awareness through educational and training programs. Nevertheless, all the above measures are a
crucial requirement for the effective implementation of International Humanitarian law.

Qs International Criminal Court; International ad hoc Criminal Tribunals

Ans. International Criminal Law

Introduction

The International Criminal Court is an intergovernmental organization and international tribunal that sits
in The Hague, Netherlands. The ICC has jurisdiction to prosecute individuals for the international
crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. It is intended to
complement existing national judicial systems and it may therefore exercise its jurisdiction only when
certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or
when the United Nations Security Council or individual states refer situations to the Court.

Establishment

The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome
Statute is a multilateral treaty that serves as the ICC's foundational and governing document. States which
become party to the Rome Statute become member states of the ICC. As of March 2019, there are 122
ICC member states. 42 states are non-party, non-signatory states.

Principal organs

I. The Presidency,
II. the Judicial Divisions,
III. the Office of the Prosecutor,
IV. And the Registry.

The ICC has faced a number of criticisms from states and civil society, including objections about its
jurisdiction, accusations of bias, questioning of the fairness of its case-selection and trial procedures, and
doubts about its effectiveness.

The Presidency

The Presidency is responsible for the proper administration of the Court (apart from the Office of the
Prosecutor). It comprises the President and the First and Second Vice-Presidents—three judges of the
Court who are elected to the Presidency by their fellow judge for a maximum of two three-year
terms. The current president is Chile Eboe-Osuji, who was elected 11 March 2018, succeeding Silvia
Fernández de Gurmendi (first female president).
 31

Judicial Divisions

The Judicial Divisions consist of the 18 judges of the Court, organized into three chambers—the Pre-Trial
Chamber, Trial Chamber and Appeals Chamber—which carry out the judicial functions of the
Court. Judges are elected to the Court by the Assembly of States Parties. They serve nine-year terms and
are not generally eligible for re-election. All judges must be nationals of states parties to the Rome
Statute, and no two judges may be nationals of the same state. They must be persons of high moral
character, impartiality and integrity who possess the qualifications required in their respective States for
appointment to the highest judicial offices.

The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge
from any case in which his or her impartiality might reasonably be doubted on any ground. Any request
for the disqualification of a judge from a particular case is decided by an absolute majority of the other
judges. A judge may be removed from office if he or she is found to have committed serious misconduct
or a serious breach of his or her duties" or is unable to exercise his or her functions. The removal of a
judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states
parties.

The Office of the Prosecutor (OTP)

The Office of the Prosecutor (OTP) is responsible for conducting investigations and prosecutions. It is
headed by the Chief Prosecutor, who is assisted by one or more Deputy Prosecutors. The Rome Statute
provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may
seek or act on instructions from any external source, such as states, international organizations, non-
governmental organizations or individuals. The Prosecutor may open an investigation under three
circumstances.

I. When a situation is referred to him or her by a state party;

II. when a situation is referred to him or her by the United Nations Security Council, acting to
address a threat to international peace and security; or
III. When the Pre-Trial Chamber authorizes him or her to open an investigation on the basis of
information received from other sources, such as individuals or non-governmental organizations.

Any person being investigated or prosecuted may request the disqualification of a prosecutor from any
case "in which their impartiality might reasonably be doubted on any ground. Requests for the
disqualification of prosecutors are decided by the Appeals Chamber. A prosecutor may be removed from
office by an absolute majority of the states parties if he or she "is found to have committed serious
misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions.

Registry

The Registry is responsible for the non-judicial aspects of the administration and servicing of the
Court. This includes, among other things, "the administration of legal aid matters, court management,
victims and witness’s matters, defense counsel, detention unit, and the traditional services provided by
administrations in international organizations, such as finance, translation, building management,
procurement and personnel. The Registry is headed by the Registrar, who is elected by the judges to a
five-year term. The current Registrar is Herman von Hebel, who was elected on 8 March 2013.
 32

Jurisdiction and admissibility

The Rome Statute requires that several criteria exist in a particular case before an individual can be
prosecuted by the Court. The Statute contains three jurisdictional requirements and three admissibility
requirements. All criteria must be met for a case to proceed. The three jurisdictional requirements are (1)
subject-matter jurisdiction (what acts constitute crimes), (2) territorial or personal jurisdiction (where the
crimes were committed or who committed them), and (3) temporal jurisdiction (when the crimes were
committed).

Subject-matter jurisdiction requirements

The Court's subject-matter jurisdiction means the crimes for which individuals can be prosecuted.
Individuals can only be prosecuted for crimes that are listed in the Statute. The primary crimes are listed
in article 5 of the Statute and defined in later articles:

I. genocide (defined in article 6),

II. crimes against humanity (defined in article 7),
III. war crimes (defined in article 8), and
IV. crimes of aggression (defined in article 8 ).
V. In addition, article 70 defines offences against the administration of justice, which is a fifth
category of crime for which individuals can be prosecuted.

Territorial or personal jurisdiction requirements

For an individual to be prosecuted by the Court either territorial jurisdiction or personal jurisdiction must
exist. Therefore, an individual can only be prosecuted if he or she has either

(1) Committed a crime within the territorial jurisdiction of the Court or

(2) Committed a crime while being a national of a state that is within the territorial jurisdiction of the
Court.

Temporal jurisdiction

Temporal jurisdiction is the time period over which the Court can exercise its powers. No statute of
limitations applies to any of the crimes defined in the Statute. However, the Court's jurisdiction is not
completely retroactive. Individuals can only be prosecuted for crimes that took place on or after 1 July
2002, which is the date that the Rome Statute entered into force. If a state became party to the Statute, and
therefore a member of the Court, after 1 July 2002, then the Court cannot exercise jurisdiction prior to the
membership date for certain cases. For example, if the Statute entered into force for a state on 1 January
2003, the Court could only exercise temporal jurisdiction over crimes that took place in that state or were
committed by a national of that state on or after 1 January 2003.

International ad hoc Criminal Tribunals

International Criminal Tribunal for the former Yugoslavia

 33

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more
commonly referred to as the International Criminal Tribunal for the former Yugoslavia (ICTY), was a
body of the United Nations established to prosecute serious crimes committed during the Yugoslav Wars,
and to try their perpetrators. The tribunal was an ad hoc court located in The Hague, Netherlands.

The Court was established by Resolution 827 of the United Nations Security Council, which was passed
on 25 May 1993. It had jurisdiction over four clusters of crimes committed on the territory of the former
Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws or customs of
war, genocide, and crimes against humanity. The maximum sentence it could impose was life
imprisonment. Various countries signed agreements with the UN to carry out custodial sentences.

A total of 161 persons were indicted; the final indictments were issued in December 2004, the last of
which were confirmed and unsealed in the spring of 2005. The final fugitive, Goran Hadžić, was arrested
on 20 July 2011. The final judgment was issued on 29 November 2017[3] and the institution formally
ceased to exist on 31 December 2017.

Residual functions of the ICTY, including oversight of sentences and consideration of any appeal
proceedings initiated since 1 July 2013, are under the jurisdiction of a successor body, the International
Residual Mechanism for Criminal Tribunals (IRMCT).

The International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda was an international court established in November 1994
by the United Nations Security Council in Resolution 955 in order to judge people responsible for
the Rwandan genocide and other serious violations of international law in Rwanda, or by Rwandan
citizens in nearby states, between 1 January and 31 December 1994.

In 1995, it became located in Arusha, Tanzania, under Resolution 977. From 2006, Arusha also became
the location of the African Court on Human and Peoples' Rights. In 1998 the operation of the tribunal was
expanded in Resolution 1165. Through several resolutions, the Security Council called on the tribunal to
complete its investigations by end of 2004, complete all trial activities by end of 2008, and complete all
work in 2012.

The tribunal had jurisdiction over genocide, crimes against humanity, and violations of Common Article
Three and Additional Protocol II of the Geneva Conventions (which deals with internal conflicts).

As of 2009, the tribunal had finished 50 trials and convicted 29 accused persons, and another 11 trials
were in progress and 14 individuals were awaiting trial in detention; but the prosecutor intended to
transfer 5 to national jurisdiction for trial. 13 others were still at large, some suspected to be dead.
 34

UNIT-III

Qs. Historical; Development of law for the protection of refugees; Definition of refugee, regional
efforts (OAU, Cartagena, Manila Principles)

Ans. A refugee, generally speaking, is a displaced person who has been forced to cross national
boundaries and who cannot return home safely. Such a person may be called an asylum seeker until
granted refugee status by the contracting state or the UNHCR. Refugee law is the branch of international
law which deals with the rights and duties States have vis-a-vis refugees. The lead international agency
coordinating refugee protection is the United Nations Office of the United Nations High Commissioner
for Refugees (UNHCR). The United Nations have a second Office for refugees, the UNRWA, which is
solely responsible for supporting the large majority of Palestinian refugees.

The Definition of a Refugee in International Law

The universally accepted definition of a refugee is enshrined in Article 1 of the 1951 Refugee Convention
which needs to bread in conjunction with its 1967 protocol (which, as stated above, lifted the temporal
and geographic limitations):

“Any person who owing to well-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 is unable or, owing to such fear, is unwilling to avail himself of the protection of that
 35

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.

This definition can be divided into four key characteristics:

1. A refugee is outside of his or her home country,

2. because of a “well-founded fear” of persecution
3. on the basis of his or her race/ethnicity, religion, nationality, membership in a social group or
political opinion and he or she can thus
4. not be reasonably expected to return to this country.

The Convention Governing the Specific Aspects of Refugee Problems in Africa expanded the 1951
definition, which the Organization of African Unity adopted in 1969:

"Every person who, owing to external aggression, occupation, foreign domination or events seriously
disturbing public order in either part or the 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."

The 1984 regional, non-binding Latin-American Cartagena Declaration on Refugees includes:

"persons who have fled their country because their lives, safety or freedom have been threatened by
generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other
circumstances which have seriously disturbed public order."
As of 2011, the UNHCR itself, in addition to the 1951 definition, recognizes persons as refugees:

"who are outside their country of nationality or habitual residence and unable to return there owing to
serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized
violence or events seriously disturbing public order."

History of International Refugee law

Ancient Greece

The roots of international refugee law can be traced back to ancient Greece and the possibility to seek
protection in certain temples belonging to communities tied together by a holy (somewhat contractual)
bond to protect a common sanctuary.

The Huguenots

The origins of the modern concept of asylum are rooted in the reaction of some European states and rulers
to the 17th century French persecutions of the Huguenots (the pre-revolutionary protestants): Friedrich
Wilhelm I and his 1685 Edict of Potsdam granted them the right to reside in his territories. Similar
permissions were also granted in Denmark, the Netherlands, England, Russia, Sweden, Switzerland, and
North America.
 36

World War I

The most significant developments in refugee law, however, are closely tied to the two World Wars. After
World War I the League of Nations commissioned the Norwegian explorer and humanitarian Fridtjof
Nansen to assist in the repatriation of Russian and other prisoners of war as well as Russian refugees after
the October Revolution. He was appointed as the League’s High Commissioner for Russian Refugees in
1921 (he was subsequently put in charge of the Balkans and near East), earning him the Nobel Peace
Prize in 1922; the League established the Nansen International Office for Refugees soon after his death in
1930. These steps were accompanied by numerous inter-governmental arrangements concluded in the
1920s which subsequently led to the 1933 Convention relating to the International Status of Refugees.

World War II

The mass expulsions and persecutions before, during and after the Second World War, then, have shaped
the contours of international refugee law until this very day.

During the Second World War, the emerging United Nations founded two agencies tasked with the relief
of the European refugees – the United Nations Relief and Rehabilitation Administration (in 1943) and the
International Refugee Organization (in 1947) – that preceded the Office of the United Nations High
Commissioner for Refugees (established in 1950).

The most decisive development was the adoption of the United Nations Convention relating to the Status
of Refugees (commonly known as the Refugee Convention or the Geneva Convention on Refugees) on 28
July 1951. It has generally been described as ‘the most comprehensive legally binding international
instrument’ in universal refugee law[9] and its key provisions remain applicable until this very day.

In recent decades, refugee law has also been heavily influenced by the evolvement of human rights law
which started immediately after the Second World War and gained increasing importance during the
1970s.[13] Even although human rights treaties such as the Covenant on Civil and Political Rights
(hereinafter CCPR) or the European Convention on Human Rights.

Regional efforts (OAU, Cartagena, Manila Principles),

OAU

The Organisation of African Unity (OAU) was an intergovernmental organization established on 25 May
1963 in Addis Ababa, Ethiopia, with 32 signatory governments. One of the main heads for OAU's
establishment was Kwame Nkrumah of Ghana. It was disbanded on 9 July 2002 by its
last chairperson, South African President Thabo Mbeki, and replaced by the African Union (AU). Some
of the key aims of the OAU were to encourage political and economic integration among member states,
and to eradicate colonialism and neo-colonialism from the African continent. Although it achieved some
success, there were also differences of opinion as to how that was going to be achieved.

The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee
Problems in Africa adopted a regional treaty based on the Convention, adding to the definition that
 37

“a refugee is any person compelled to leave his/her country owing to external aggression, occupation,
foreign domination or events seriously disturbing public order in either part or the whole of his country of
origin or nationality.”

The Cartagena Declaration on Refugees

The Cartagena Declaration on Refugees, or just Cartagena Declaration, is a non-binding regional, i.e.
Latin-American, instrument for the protection of refugees and was adopted in 1984 by delegates from 10
Latin-American countries: Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico,
Nicaragua, Panama and Venezuela. The Declaration has since been incorporated into the national laws
and state practices of 14 countries.

The declaration is the result of the "Colloquium on International Protection for Refugees and Displaced
Persons in Central America, Mexico and Panama", which was held in Cartagena, Colombia from 19 to 22
November 1984. The Declaration was influenced by the "Contadora Act on Peace and Cooperation",
which itself was based on the 1951 Refugee Convention and the 1967 Protocol.

The Declaration reaffirms the importance of the right to asylum, the principle of non-refoulement and the
importance of finding durable solutions.

Refugee definition

Compared to the 1951 Convention and the 1967 Protocol the Cartagena Declaration allows a broader
category of persons in need of international protection to be considered as refugees. The Declaration, in
Conclusion III, adds five situational events to the definition of the 1951 Convention and the 1967
Protocol. Similar additions were made in the 1969 Refugee Convention, but the Cartagena Declaration
has further extended them. Refugees are those:

"persons who have fled their country because their lives, security or freedom have been threatened by
generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other
circumstances which have seriously disturbed public order".

This definition allows a broader temporal and geographical scope for the risks refugees find themselves in
and additionally covers some of the indirect effects such as poverty, economic decline, inflation, violence,
disease, food insecurity, malnourishment and displacement.

Qs. Legal framework: Convention Relating to the Status of Refugees, 1951 and Protocol
of 1967

The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention or
the Geneva Convention of 28 July 1951, is a United Nations multilateral treaty that defines who
a refugee is, and sets out the rights of individuals who are granted asylum and the responsibilities of
nations that grant asylum. The Convention also sets out which people do not qualify as refugees, such
as war criminals. The Convention also provides for some visa-free travel for holders of refugee travel
documents issued under the convention.
 38

The Refugee Convention builds on Article 14 of the 1948 Universal Declaration of Human Rights, which
recognizes the right of persons to seek asylum from persecution in other countries. A refugee may enjoy
rights and benefits in a state in addition to those provided for in the Convention.

Definition of refugee

Article 1 of the Convention defines a refugee as:

As a result of events occurring before 1 January 1951 and “owing to well-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 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.”

Rights and responsibilities of parties to the Refugee Convention

In the general principle of international law, treaties in force are binding upon the parties to it and must be
performed in good faith. Countries that have ratified the Refugee Convention are obliged to protect
refugees that are on their territory, in accordance with its terms. There are a number of provisions that
States parties to the Refugee Convention must adhere to.

Refugees shall

abide by the national laws of the contracting states (Article 2)

The contracting states shall

I. exempt refugees from reciprocity (Article 7): That means that the granting of a right to a refugee
should not be subject to the granting of similar treatment by the refugee's country of nationality,
because refugees do not enjoy the protection of their home state.[15]
II. be able to take provisional measures against a refugee if needed in the interest of essential
national security (Article 9)
III. respect a refugee's personal status and the rights that come with it, particularly rights related to
marriage (Article 12)
IV. provide free access to courts for refugees (Article 16)
V. provide administrative assistance for refugees (Article 25)
VI. provide identity papers for refugees (Article 27)
VII. provide travel documents for refugees (Article 28)
VIII. allow refugees to transfer their assets (Article 30)
IX. provide the possibility of assimilation and naturalization to refugees (Article 34)
X. cooperate with the UNHCR (Article 35) in the exercise of its functions and to help UNHCR
supervise the implementation of the provisions in the Convention.
XI. provide information on any national legislation they may adopt to ensure the application of the
Convention (Article 36).
XII. settle disputes they may have with other contracting states at the International Court of Justice if
not otherwise possible (Article 38)
 39

The contracting states shall not

I. discriminate against refugees (Article 3)

II. take exceptional measures against a refugee solely on account of his or her nationality (Article 8)
III. expect refugees to pay taxes and fiscal charges that are different to those of nationals (Article 29)
IV. impose penalties on refugees who entered illegally in search of asylum if they present themselves
without delay (Article 31), which is commonly interpreted to mean that their unlawful entry and
presence ought not to be prosecuted at all[16]
V. expel refugees (Article 32)
VI. forcibly return or "refoul" refugees to the country they have fled from (Article 33). It is widely
accepted that the prohibition of forcible return is part of customary international law. This means
that even states that are not party to the 1951 Refugee Convention must respect the principle of
non-refoulement.[15] Therefore, states are obligated under the Convention and under customary
international law to respect the principle of non-refoulement. If and when this principle is
threatened, UNHCR can respond by intervening with relevant authorities, and if it deems
necessary, will inform the public.

Refugees shall be treated at least like nationals in relation to

I. freedom to practice their religion (Article 4)

II. the respect and protection of artistic rights and industrial property (Article 14)
III. rationing (Article 20)
IV. elementary education (Article 22)
V. public relief and assistance (Article 23)
VI. labour legislation and social security (Article 24)

Refugees shall be treated at least like other non-nationals in relation to

I. movable and immovable property (Article 13)

II. the right of association in unions or other associations (Article 15)
III. wage-earning employment (Article 17)
IV. self-employment (Article 18)
V. practice of the liberal professions (Article 19)
VI. housing (Article 21)
VII. education higher than elementary (Article 22)
VIII. the right to free movement and free choice of residence within the country (Article 26)

The Protocol Relating to the Status of Refugees

The Protocol Relating to the Status of Refugees is a key treaty in international refugee law. It entered into
force on 4 October 1967, and 146 countries are parties.

Where the 1951 United Nations Convention Relating to the Status of Refugees had restricted refugee
status to those whose circumstances had come about "as a result of events occurring before 1 January
1951", as well as giving states party to the Convention the option of interpreting this as "events occurring
in Europe" or "events occurring in Europe or elsewhere", the 1967 Protocol removed both the temporal
and geographic restrictions. This was needed in the historical context of refugee flows resulting
 40

from decolonisation. Madagascar and Saint Kitts and Nevis are parties only to the Convention,
while Cape Verde, the United States of America and Venezuela are parties only to the Protocol.

The Protocol gave those states which had previously ratified the 1951 Convention and chosen to use the
definition restricted to Europe the option to retain that restriction. Only four states actually chose that
restriction: the Republic of the Congo, Madagascar, Monaco, and Turkey. Congo and Monaco dropped
the restriction upon ratifying the 1967 Protocol; Turkey retained it, and Madagascar has not ratified the
Protocol.

Principle of non-refoulement

Non-refoulement is a fundamental principle of international law that forbids a country receiving asylum
seekers from returning them to a country in which they would be in likely danger of persecution based on
"race, religion, nationality, membership of a particular social group or political opinion". Unlike political
asylum, which applies to those who can prove a well-grounded fear of persecution based on certain
category of persons, non-refoulement refers to the generic repatriation of people,
including refugees into war zones and other disaster locales. It is a principle of customary international
law, as it applies even to states that are not parties to the 1951 Convention Relating to the Status of
Refugees or its 1967 Protocol. It is also a principle of the trucial law of nations.

It is debatable whether non-refoulement is a jus cogens of international law. If so, international law would
permit no abridgments for any purpose or under any circumstances. The debate over this matter was
rekindled following the September 11, 2001 terror attacks in the United States as well as other terrorist
attacks in Europe.

Relevant laws

Article 3 of the 1933 Convention relating to the International Status of Refugees contained the first
mention of non-refoulement in international law and prevented party states from expelling legally-
residing refugees or turning away refugees at the borders of their home countries. This treaty was ratified
by only a few states and gained little traction in international law.

The principle of "non-refoulement" was officially enshrined in Article 33 of the 1951 Convention
Relating to the Status of Refugees. Article 33 contains the following two paragraphs that define the
prohibition of the expulsion or return of a refugee:

I. "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or political opinion."
II. "The benefit of the present provision may not, however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the security of the country in which he is, or who,
having been convicted by a final judgment of a particularly serious crime, constitutes a danger to
the community of that country."

The 1967 Protocol Relating to the Status of Refugees modified Article 33 and created a more inclusive
legal standard for defining refugees as:
 41

I. owing to well-founded fear of being persecuted for reason of race, religion, nationality,
membership of a particular social group or 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.
II. Article III of the Asian-African Legal Consultative Organization's (then known as the Asian-
African Legal Consultative Committee) 1996 Principles Concerning Treatment of Refugees
states: No one seeking asylum in accordance with these Principles should, except for overriding
reasons of national security or safeguarding the populations, be subjected to measures such as
rejection at the frontier, return or expulsion which would result in compelling him to return to or
remain in a territory if there is a well-founded fear of persecution endangering his life, physical
integrity or liberty in that territory.
III. Article II(3) of the Organization for African Unity's Convention Governing the Specific Aspects
of Refugee Problems in Africa, signed in 1969, makes provisions for asylum seekers fleeing war,
colonial dominance, or social unrest.
IV. Article 22(8) of the 1969 American Convention on Human Rights establishes danger to an
asylum seeker's "right to life or personal freedom" as the threshold for non-refoulement among
American states.
V. Article 3 of the 1984 Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment held that non-refoulement emanated from larger protections from
torture and inhumane treatment. This represented a major shift, as these protections, and therefore
non-refoulement provisions, are considered absolute rights.
VI. Per Article 3(2) of the 1957 European Convention on Extradition and Article 4(5) of the 1981
Inter-American Convention on Extradition, the principle of non-refoulement also applies to
extradition cases in which the person believes they will be tried or biased based specifically on
one of the protected factors.

Qs. Assessment in Refugee Status Determination; UNHCR’s procedure for the determination of
refugee status in India; Loss and denial of refugee status.

Ans. The head office of UNHCR's mission in India is located in Delhi, with a field office in Chennai.
Actor John Abraham is the Goodwill ambassador for UNHCR in India. The current chief of mission is
Yasuko Shimizu. UNHCR won the Indira Gandhi Prize for Peace, Disarmament and Development in
2015. UNHCR was awarded the Mother Teresa Award for Social Justice by the Harmony Foundation,
Mumbai.

India was the venue for the single largest influx of refugees since the Second World War, when an
estimated 10 million people crossed over from East Pakistan to India in 1971. The majority of refugees
were in West Bengal, Tripura, Meghalaya and Assam. The majority of the refugees were repatriated after
the war, with the UNHCR Dhaka office's support. UNHCR has been allowed to operate in India since
1981, even though India has not signed the 1951 Refugee Status Convention or the 1967 Refugee Status
Protocol.

UNCHR procedure for the determination of refugee in India

 42

UNHCR in India conducts Refugee Status Determination (RSD) procedures, which starts with
registration of individual asylum-seekers. Following registration, UNHCR conducts interviews with each
individual asylum-seeker to assess his/her claim to international protection as a refugee.

UNHCR offers its technical expertise to several legal, academic and research institutions. It conducts the
Post Graduate Diploma course in Refugee law in collaboration with the Indian Society of International
Law (ISIL) in New Delhi.

Procedure for refugee status determination (RSD)

Following procedure for RSD—

Registration

If someone would like to apply for asylum, one and his family members should approach UNHCR. The
first step in the asylum process is registration. Registration is the recording, verifying and updating of
information on persons of concern to UNHCR. The registration process may take place at the UNHCR
Registration Center in Delhi, the UNHCR office in Chennai, or through a partner organization. In Delhi,
registration takes place at the UNHCR Registration Centre located at: C-543A, Vikas Puri, New Delhi
110018. In Chennai, registration takes place at: UNHCR, No.11, 17th Cross Street, Besant Nagar,
Chennai 600090

In Hyderabad and Pune, UNHCR’s partners facilitate the registration process.

Registration will take place the day someone approach the UNHCR Registration Centre, or as soon as
possible in the following days. Person must come for registration with all of their family members who
are present in India who are also not yet registered with UNHCR with complete address and phone
numbers.

If you are in possession of any of the documents listed below (original, expired or copies), kindly bring
them with you when you approach UNHCR for registration and present them during your registration
interview:

– Case numbers of immediate family members who have been registered with UNHCR (in India or
elsewhere),

– Passport/nationality document/identity document

– Birth certificates/vaccination cards for children

– Marriage/divorce/death certificates– Any other documents you may have

if person don’t have any of the above documents, you can still register with UNHCR.

Person will be requested to fill in a registration form with basic information about himself and his family
members, including name, date of birth, education, place and country of origin, contact details, etc.
person will also be asked to explain on the form why you left your country and why you cannot go back.
If you are unable to fill out the form, you will be assisted. Person will be interviewed by a Registration
 43

Officer who will go through the form. Person picture will be taken and fingerprints and iris scan will be
recorded.

Refugee status determination process

Once the registration process is complete, you will be provided with information about the next steps in
the refugee status determination process.

Applicant will receive a case number and an “Under Consideration Certificate” (UCC), acknowledging
that applicant have applied for asylum with UNHCR India and that his/her application is under
consideration. Information will be provided about subsequent steps including refugee status determination
interview during which applicant will be questioned in detail about reasons for seeking asylum. the
refugee status determination interview can be scheduled up to 20 months from the registration date.
Following this interview, based on the information provides and information available on the situation in
applicants place of origin, UNHCR will make a determination on your refugee status.

Additional information for asylum seekers

Asylum seekers who have a disability or a serious medical condition, children without adult support, or
others with exceptional protection needs may be referred to services available through UNHCR and
partners.

Result of my application for refugee status

UNHCR makes every effort to ensure that decisions are made and shared on time. The decisions may take
12 months from the interview date. If 12 months have passed and applicant has still not received the
outcome of your refugee status determination interview, you can email [email protected], call our toll free
number 1800-1035635. Applicant will also be informed of the result of his application through post,
email and/ or phone.

Appeal

Asylum seekers have the right to appeal if your application for refugee status is rejected for the first time.
UNHCR issues a ‘notification of rejection’ decision along with a blank appeal form. You have 30 days
from the date of receiving the decision, to submit this appeal form to UNHCR.

Applicant may submit the appeal form in person at the UNHCR Registration Centre, via the blue mail
box at UNHCR’s Registration Office in Vikas Puri or at the offices of UNHCR’s partners or send it to
UNHCR via post.

Reopening of case

Reopening of a closed case is not a right. Cases are reopened only on exceptional grounds and UNHCR
may not be in a position to respond to all requests received. Written requests for reopening of closed files
can be submitted through the blue box kept at UNHCR, Vasant Vihar or UNHCR Registration Centre in
Vikas Puri. Applicant can also send your re-opening application to [email protected].

Loss and denial of refugee status

 44

Cancellation proceedings essentially constitute a re-assessment of eligibility for refugee protection at the
time of the original determination, with a view to reversing the positive decision if the applicant did not
meet the inclusion criteria, or if one of the exclusion clauses would have applied. Thus, for cancellation to
be justified, one or more of the following grounds must be present:

• Substantial fraud on the part of the applicant with regard to core aspects relating to his or her eligibility
for protection

• Other misconduct affecting eligibility by the applicant, such as for example threats or bribery

• Applicability of an exclusion clause, with or without fraud on the part of the applicant

• An error of law and/or fact by the determining authority, relating to inclusion or exclusion criteria.

1. Cancellation of refugee status because of fraud on the part of the applicant

In most of the countries examined for the purpose of this paper, where national refugee laws contain
cancellation provisions, refugee status is liable to cancellation if it was obtained by fraud18. Sometimes,
fraud is the only cancellation ground explicitly mentioned in refugee legislation19. Where there are no
cancellation provisions in national refugee laws, or where these do not refer to fraud, general
administrative law regularly permits the invalidation of administrative acts obtained by misrepresentation
or concealment of material facts. Cancellation of refugee status obtained through fraud is mandatory in
some countries, subject to discretion in others.

State practice is consistent in requiring, for fraud as ground for cancellation, the presence of all three of
the following elements:

(i) objectively incorrect statements by the interested party;

(ii) causality between these claims and the decision to grant refugee status by the
authority;
(iii) Intention to mislead by the interested party.

2. Cancellation on the basis of other misconduct by the applicant

An administrative act may regularly be invalidated ab initio if it was obtained through threats or bribery.
As with fraud, the applicant's conduct must have been material to the decision made. Depending on the
legal regime in place, officials who accept bribes will be liable to disciplinary sanctions as well as
prosecution under applicable criminal law.

3. Cancellation on the basis of an exclusion provision of the 1951 Convention.

National legislation in a number of countries provides explicitly for the cancellation of refugee status in
circumstances where one of the exclusion clauses of the 1951 Convention would have applied at the time
of the initial determination. In other countries, cancellation is permitted under administrative law or
applicable general principles of law, on the basis that the initial decision was erroneous, since the
 45

applicant was not eligible for protection under the 1951 Convention due to the existence of an exclusion
ground at the time of the initial determination.

4. Cancellation of refugee status because of a mistake on the part of the authority.

The recognition as a refugee of a person who does not meet the criteria of the 1951 Convention may
result from an error on the part of the determining authority. The nature and seriousness of the mistake
may justify cancellation of refugee status, including where the initial claim was presented in good faith,
although it is in such situations that the legitimate interests, or acquired rights, of the person concerned
may outweigh the public interest in rectifying a determination which was wrongly made in the first place.

Qs. Asylum

Ans. A place of asylum is where an individual can take refuge to protect him- or herself from danger. The
right of asylum is a fundamental human right, as set forth in the Universal Declaration of Human Rights.

Freedom of movement includes the right of all individuals to flee their country and seek asylum in
another State. However, this right is limited by the fact that there is no reciprocal obligation for States to
grant asylum.

According to the UNHCR, an estimated 479,300 asylum applications were registered in the forty-four
industrialized countries in 2012. These were mostly submitted by citizens of Afghanistan (36,600), the
Syrian Arab Republic (24,800), Serbia (24,300), China (24,100), and Pakistan (23,200). The principal
countries that received those applications were the United States of America (83,400), Germany (64,500),
France (54,900), Sweden (43,900), A place of asylum is where an individual can take refuge to protect
him- or herself from danger. The right of asylum is a fundamental human right, as set forth in the
Universal Declaration of Human Rights.

Meaning of Asylum

An asylum seeker is a person who flees their home country because of war or other hards harming them
or their family, enters another country and applies for asylum, i.e. the right to international protection, in
this other country. An asylum seeker is a type of migrant and may be a refugee, a displaced person, but
not an economic migrant. Migrants are not necessarily asylum seekers. A person becomes an asylum
seeker by making a formal application for the right to remain in another country and keeps that status
until the application has been concluded.

The asylum seeker may be recognised as a refugee and given refugee status if the person's circumstances
fall into the definition of "refugee" according to the 1951 Refugee Convention or other refugee laws, such
as the European Convention on Human Rights – if asylum is claimed within the European Union.
However signatories to the refugee convention create their own policies for assessing the protection status
of asylum seekers, and the proportion of asylum applicants who are accepted or rejected varies each year
from country to country.

The Rights of Asylum

Article 14 of the 1948 Universal Declaration of Human Rights establishes that “everyone has the right to
seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case
 46

of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and
principles of the United Nations.”

The 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the UNHCR Statute
attempt to guarantee and protect the right of asylum for all individuals who fear persecution in their
country (Arts. 8.a, 8.d of UNHCR Statute; Arts. 1, 31–33 of Refugee Convention).

The right of asylum is defended concretely by the following provisions:

I. States may not expel or return an individual seeking asylum to a territory where his or her life or
freedom would be threatened (the principle of non-refoulement), even if he or she entered this
State illegally (Arts. 32, 33 of Refugee Convention).
II. States shall not impose penalties on refugees who entered or are present illegally on its territory if
they arrive directly from a territory where their life or freedom was threatened. This provision
applies as long as the refugees present themselves without delay to the authorities and show good
cause for their illegal entry or presence (Art. 31 of Refugee Convention).
III. Temporary asylum: in the case of a large-scale influx of asylum seekers, the State where the
exodus stops (generally a neighboring country) is under the obligation to provide this population
with temporary asylum. This assistance is to be given with the collaboration of the entire
international community, through the UNHCR, until a durable solution is found (Conclusion 22
of 24 April 1981, UNHCR Executive Committee XXXII session).
IV. National authorities must grant refugee status to all individuals who meet the qualifications
defined by the Refugee Convention.
V. The right to flee one’s country does not mean refugees have the right to choose their country of
asylum. The terms first country of asylum or safe country illustrate this notion by indicating that,
while fleeing his or her own country, the asylum seeker has crossed another territory, whether he
or she stayed there or only passed through, in which he or she could have sought the protection
foreseen by the Refugee Convention.

Many States refuse to examine individuals’ request for refugee status if such a country of first asylum
exists and the asylum seeker can be sent back there. In Europe, this prerogative is expressly recognized
by:

I. a 1992 resolution adopted by the Council of Ministers of the European Union concerning a
harmonized approach to questions concerning the safe third country—this text establishes the
criteria for such a State;
II. the Schengen Convention of 14 June 1985 (regulating the movement of asylum seekers within the
States party to the Convention);
III. the Dublin Convention of 15 June 1990 (determining the State responsible for examining asylum
applications).

These treaties apportion the responsibilities with regard to asylum seekers among the Member States of
the European Union. Other States have domestic laws, acts, and regulations that regulate the procedure
for parties granting asylum.
 47

In its Conclusion 58 (XL session, 1989), the UNHCR Executive Committee recommends that an
individual be sent back to a “safe third country” only if he or she will be treated in accordance with basic
humanitarian norms—in other words, with respect for the civil rights set forth by the Refugee Convention
and the Universal Declaration on Human Rights.

Unit-IV
 48

Qs Substantive rights of refugees under 1951 Refugee Convention: i) Nondiscrimination, ii) Right to
fair trial, iii) Employment, iv) Housing and property, v) Education, vi) Freedom of movement, vii)
Family reunification.

Ans.

Qs. United Nations High Commissioner for Refugees (UNHCR): appointment, powers and
functions with respect to the protection of refugees/IDPs

Ans. The United Nations High Commissioner for Refugees (UNHCR) is a United Nations agency with
the mandate to protect refugees, forcibly displaced communities and stateless people, and assist in
their voluntary repatriation, local integration or resettlement to a third country. UNHCR‘s mandate does
not apply to Palestinian refugees, who are assisted by UNRWA.

UNHCR was created in 1950, during the aftermaths of World War II. Its headquarters are
in Geneva, Switzerland and it is a member of the United Nations Development Group. The UNHCR has
won two Nobel Peace Prizes, once in 1954 and again in 1981 and a Prince of Asturias Awards for
International Cooperation in 1991.

History

Following the demise of the League of Nations and the formation of the United Nations the international
community was acutely aware of the refugee crisis following the end of World War II. In 1947,
the International Refugee Organization (IRO) was founded by the United Nations. The IRO was the first
international agency to deal comprehensively with all aspects of refugees' lives. Preceding this was
the United Nations Relief and Rehabilitation Administration, which was established in 1944 to address
the millions of people displaced across Europe as a result of World War II.

In the late 1940s, the IRO fell out of favor, but the UN agreed that a body was required to oversee global
refugee issues. Despite many heated debates in the General Assembly, the United Nations High
Commissioner for Refugees was founded as a subsidiary organ of the General Assembly by Resolution
319 (IV) of the United Nations General Assembly of December 1949. However, the organization was
only intended to operate for 3 years, from January 1951, due to the disagreement of many UN member
states over the implications of a permanent body.

High Commissioners—appointment

The UN General Assembly elects High Commissioners every five years. High Commissioners are
supported by the 'Executive Committee to the High Commissioner's Programme' and he or she has to
make annual reports to the UN General Assembly and needs to follow their directives. The current High
Commissioner is Filippo Grandi, who has held the post since 1 January 2016. Prior to the establishment
of the UNHCR, Fridtjof Nansen was the League's High Commissioner for Refugees. As of
November 2018, the UNHCR employed a staff of 16,765 people in 138 countries.
 49

Special Envoy of High Commissioner

After 10 years serving as a Goodwill Ambassador, Angelina Jolie was promoted in 2012 to Special Envoy
to the High Commissioner. In this role she represents the UNHCR and High Commissioner Filipo Grandi
at the diplomatic level and works to facilitate long-term solutions for people displaced by large-scale
crises, such as Afghanistan and Somalia. "This is an exceptional position reflecting an exceptional role
she has played for us," said a UNHCR spokesman.

Goodwill ambassadors

UNHCR is also represented by a number of UNHCR Goodwill Ambassadors, UNHCR Goodwill

Ambassadors are celebrity representatives of the Office of the UN High Commissioner for Refugees
(UNHCR) who use their talent and fame to advocate for refugees.

Powers and functions

Co-ordinate international action to protect refugees with other international agencies

UNHCR was established on 14 December 1950[5] and succeeded the earlier United Nations Relief and
Rehabilitation Administration. The agency is mandated to lead and co-ordinate international action to
protect refugees (other than Palestinian refugees, who are assisted by UNWRA) and resolve refugee
problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives
to ensure that everyone can exercise the right to seek asylum and find safe refuge in another state, with
the option to return home voluntarily, integrate locally or to resettle in a third country.

Humanitarian assistance

UNHCR's mandate has gradually been expanded to include protecting and providing humanitarian
assistance to whom it describes as other persons "of concern," including internally displaced
persons (IDPs) who would fit the legal definition of a refugee under the 1951 United Nations Convention
Relating to the Status of Refugees and 1967 Protocol, the 1969 Organization for African Unity
Convention, or some other treaty if they left their country, but who presently remain in their country of
origin. UNHCR presently has major missions in Lebanon, South Sudan, Chad/Darfur, Democratic
Republic of Congo, Iraq, Afghanistan as well as Kenya to assist and provide services to IDPs
and refugees in camps and in urban settings.

Public awareness & Future of Refugees

Several new programs have recently been introduced to support and to heighten awareness of the issues
faced by refugees around the world. These two new programs are a product of the benchmarks set out by
the United Nations Millennium Development Goals. The UNHCR works in different regions of the world
to raise awareness about the refugee crisis and the needs of these refugees.
In Ireland, the UNHCR works to inform the public through different channels. The UNHCR in Ireland
actively pursues media relations and supply the media with accurate and reliable information coupled
with our unique insight based on our refugee protection mandate and role as one of the world’s leading
humanitarian agencies. It also engages its community by holding public events in aims of informing
people of current refugee crises. One of these is the annual UNHCR/SARI Fair play Football Cup.
 50

Cooperation with the United Nations

As UNHCR is a programme governed by the UN General Assembly, and the UN Economic and Social
Council, it cooperates with many other programs and agencies under the United Nations in order to
effectively protect the rights of refugees.

On 19 September 2016, UN General Assembly hosted the UN Summit for Refugees and Migrants, a
high-level summit to address large movements of refugees and migrants, with the aim of bringing
countries together behind a more humane and coordinated approach. Leaders of the UN High
Commissioner for Human Rights, UN Entity for Gender Equality and the Empowerment of Women, UN
Office on Drugs and Crime, and The World Bank were present. The summit addressed the root causes
and drive for migration and the necessity of global cooperation. As a result of this summit, the United
Nations unveiled a draft set of principles that urge the international community to build on the momentum
set by the adoption of the New York Declaration for Refugees and Migrants (2016).

UNHCR maintains a database of refugee information

UNHCR maintains a database of refugee information, ProGres, which was created during the Kosovo
War in the 1990s. The database today contains data on over 11 million refugees, or about 11% of all
displaced persons globally. The database contains biometric data, including fingerprints and iris scans and
is used to determine aid distribution for recipients. The results of using biometric verification has been
successful. When introduced in Kenyan refugee camps of Kakuma and Dadaab in the year 2013, the UN
World Food Programme was able to eliminate $1.4m in waste and fraud.

Award to UNHCR

Since 1954, the UNHCR Nansen Refugee Award has been annually awarded to a person or an
organization in recognition of outstanding service to the cause of refugees, displaced or stateless people.
The UNHCR itself was awarded the Nobel Peace Prize in 1954 and 1981. The UNHCR was awarded
the Indira Gandhi Prize in 2015. In 1991 was awarded with the prestigious Prince of Asturias Award for
International Cooperation.

Qs. Legal protection of Internally Displaced Persons and Stateless persons

Ans. Internally Displaced Persons

An internally displaced person (IDP) is someone who is forced to flee his or her home but who remains
within his or her country's borders. They are often referred to as refugees, although they do not fall within
the legal definitions of a refugee. At the end of 2014, it was estimated there were 38.2 million IDPs
worldwide, the highest level since 1989, the first year for which global statistics on IDPs are available.
The countries with the largest IDP populations were Syria (7.6 million), Colombia (6 million), Iraq (3.6
million), the Democratic Republic of the Congo (2.8 million), Sudan (2.2 million), South Sudan (1.9
million), Pakistan (1.4 million), Nigeria (1.2 million) and Somalia (1.1 million). The United
Nations and UNHCR support monitoring and analysis of worldwide IDPs through the Geneva-
based Internal Displacement Monitoring Centre.

Definition
 51

Whereas 'refugee' has an authoritative definition under the 1951 Refugee Convention, there is no
universal legal definition of internally displaced persons (IDP); only a regional treaty for African
countries (see Kampala Convention). However, a United Nations report, Guiding Principles on Internal
Displacement uses the definition of:

"persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of
habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations
of generalized violence, violations of human rights or natural or human-made disasters, and who have not
crossed an internationally recognized State border."

Stateless person

In international law, a stateless person is someone who is "not considered as a national by any state under
the operation of its law". Some stateless people are also refugees. However, not all refugees are stateless,
and many people who are stateless have never crossed an international border. On 12 November
2018, United Nations High Commissioner for Refugees warned there are about 12 million stateless
people in the world.

Causes of statelessness

Conflicting nationality laws are one of the causes of statelessness. Nationality is usually acquired through
one of two modes, although many nations recognize both modes today:

I. Jus soli ("right of the soil") denotes a regime by which nationality is acquired through birth on the
territory of the state. This is common in the Americas.
II. Jus sanguinis ("right of blood") is a regime by which nationality is acquired through descent,
usually from a parent who is a national. Almost all states in Europe, Asia, Africa, and Oceania
grant citizenship at birth based upon the principle of jus sanguinis.

A person who does not have either parent eligible to pass citizenship by jus sanguinis can be stateless at
birth if born in a state which does not recognize jus soli. For instance, a child born outside Canada to two
Canadian parents, who were also born outside Canada to Canadian parents, would not be a Canadian
citizen, since jus sanguinis is only recognized for the first generation in Canada. If the child were born
in India and neither parent had Indian citizenship, then the child would be stateless since India only
confers citizenship to children born to at least one Indian parent.

Protection of IDPs

IHL contains many provisions concerning the prevention of displacement and the protection of IDPs -
mainly in Geneva Convention IV (GC IV) and Additional Protocols I and II (AP I and APII), as well as in
customary international law. States have the responsibility to implement these protections in their internal
legal framework. The following provisions should be considered when enacting national legislation: …

Prohibition of displacement and the right to voluntary return

In general terms, the prevention of violations of IHL would lead to a reduction of IDPs as a result of
armed conflict. Forcible displacement is prohibited, whether within the borders of a country or across
international borders. secure adequate food by seeking, permitting, and facilitating the delivery of food
 52

aid. GC IV Art. 55 and 59. If responsible authorities are unable to meet these standards, they should not
impair humanitarian assistance from other impartial humanitarian bodies.

Family life

The unity of families should be protected. In situations of internment or detention during armed conflict,
and in camps or other communal shelter generally, family members must be accommodated together GC
IV Art. 82 (2) and (3). AP I Art. 75 (5), CIHL Rule 131. If family members become separated, all
appropriate steps must be taken to facilitate their reunification. GC IV Art. 26, 27 and 49, AP I Art. 74,
AP II 4(3).

Documentation

Every person is entitled to registration and a name immediately at birth, especially in situations of
occupation GC IV Art. 50. States are specifically obliged to ensure that vulnerable groups such as
refugees and interned civilians in occupied territories are provided with basic documentation. GC IV Art.
97(6).

Property and Possessions

In armed conflict situations, civilian property and possessions shall not be subject to pillage GC IV Art.
33, or direct or indiscriminate attacks AP I Art. 85, used as a shield for military operations or objectives
AP I Art. 51 or destruction or appropriation as reprisal AP I Art. 52 or collective punishment AP I Art.
75(2) d). In all situations, property and possessions shall be protected from destruction or arbitrary and
illegal appropriation, occupation, or use. Shelter is not specifically provided for in the protection of
protected persons under the Geneva Conventions and Additional Protocols, however, the extensive
destruction and appropriation of housing is prohibited GC IV Art. 147

Non-discrimination

Because of their situation of being displaced, IDPs suffer from particular vulnerabilities. IDPs must be
treated humanely and shall not be discriminated against on the grounds of their displacement or for any
other reason. It is important that nothing in the existing law singles out IDPs for less favourable treatment
than the general population. Protected persons shall be treated with the same consideration without any
adverse distinction. GC IV Art. 3 and 27, AP I Art. 75 and AP II Art. 2(1) and 4(1).

Protection as part of the civilian population

IDPs are part of the civilian population and therefore are entitled to the protections afforded to all
civilians. GCIV in particular Art. 4 and 27. Other important provisions are API Art. 51 and 75, and APII
Art. 4 and 5.

The right to life, to dignity and to freedom

The life and dignity of IDPs shall be respected. GC IV Art. 3, 27 and 32, AP I Art 75(2) and AP II Art. 4.
As with all soon as hostilities have ceased there implies the right to recovery of their property. More
particularly, the property rights of displaced persons must be respected.
 53

Employment and Social Protection

The general non-discrimination clauses of IHL GC IV Art. 27, AP I Art. 75 (1) applicable during armed
conflict also apply to the areas of employment, economic activities, and social security. Minimum
standards of working conditions must be respected for certain categories or persons who are made to
work during situations of armed conflict. GC IV Art. 40. Customary international humanitarian law also
prohibits uncompensated or abusive forced labour AP II Art. 4(2)(f).

Education

In international armed conflict, parties to the conflict must take the necessary measures to ensure that
children under fifteen, who are orphaned or are separated from their families as a result of the war, are not
left to their own resources and that their education is facilitated in all circumstances GC IV, Art. 24(1).
Occupying powers must also facilitate the functioning of educational facilities in occupied territories GC
IV, Art. 50(1). In situations of non-international armed conflict, children must receive an education,
including religious and moral education AP II Art. 4(3)(a), 28(2).

Prohibition of forcible recruitment of children

As a result of displacement children are particularly vulnerable to forcible recruitment into armed forces
or groups. IHL prohibits forcible recruitment of children under 15 years of age API Art. 77(2), APII Art.
4(3). They must not be forced nor permitted to take direct part in hostilities. Persons over 15 years of age
shall not be subject to discriminatory practices of recruitment as a result of their displacement.

Protection of stateless person

I. "Stateless birth" on their territory attracts the grant of their nationality (article 1).
II. Otherwise stateless persons may take the nationality of the place of their birth or of the place
where they were found (in the case of a foundling), otherwise they may take the nationality of one
of their parents (in each case possibly subject to a qualifying period of residence in that State)
(article 2).
III. A stateless person has some time beyond attaining adulthood to seek to claim the benefit of the
Convention. That time is always at least three years from the age of eighteen (article 1(5)).
IV. Transfer of territory between states must occur in a manner that avoids the occurrence of
statelessness for persons residing in the territory transferred. When a State acquires territory, the
inhabitants of that territory presumptively acquire the nationality of that State (article 10).
V. Persons otherwise stateless shall be able to take the nationality of one of their parents (possibly
subject to a period of prior residence not more than three years) (article 4).
VI. Absent circumstances of fraudulent application or disloyalty toward the contracting state,
deprivations and renunciations of citizenship shall only take effect where a person has or
subsequently obtains another nationality in replacement (article 8).
VII. The United Nations High Commissioner for Refugees (UNHCR) will issue travel
documents evidencing nationality to persons, otherwise stateless, having a claim of nationality
under the convention.
VIII. Birth on a sea vessel or aircraft may attract the nationality of the flag of that vessel or craft
(article 3).
 54

IX. Disloyal or certain criminal conduct may limit an individual's ability to avail the benefit of the
Convention (article 8).
X. The benefit of the Convention may be claimed by guardians on behalf of children (article 1(1)).
XI. States may impose a period of residence qualification for granting nationality to persons who may
be otherwise stateless. That period is a maximum five years immediately prior to application and
maximum of ten years overall (article 1(2)).

Qs. Standards of treatment: Women and Children Refugees

Ans. Woman refugee

Refugee women face gender-specific challenges in navigating daily life at every stage of their migration
experience. Common challenges for all refugee women, regardless of other demographic data, are access
to healthcare and physical abuse and instances of discrimination, sexual violence, and human
trafficking are the most common ones.

Standards of treatment for women

The Women's Refugee Commission is a organization that improves the lives and protects the rights of
women, children and youth displaced by conflict and crisis. Established in 1989, it was part of
the International Rescue Committee (IRC) until the summer of 2014 when it became a legally separate
entity.

Adolescent girls

The Women's Refugee Commission illuminates and addresses the critical needs of adolescent girls in
crisis settings to ensure that they stay safe and make positive changes in their lives. We identify and
promote ways that girls can protect themselves, access healthcare, complete school, build leadership skills
and be seen as a valued part of their families and communities.

Detention and asylum

The Women's Refugee Commission, Detention & Asylum Program (DAP) advocates for legislation and
policy that would ensure the safety and well-being of migrant women, families and unaccompanied
children. DAP works with the Obama administration, the U.S. Congress and the Department of Homeland
Security, including its various agencies, to institutionalize these important safeguards.

Disabilities

To address the gap in knowledge on the issue and to place refugees with disabilities higher on the
international agenda, the Women’s Refugee Commission undertook a six-month research project in 2008
to assess the situation of those living with disabilities among displaced and conflict-affected populations.
Using our field research in five countries—Ecuador, Jordan, Nepal, Thailand and Yemen—we sought to
document existing services for displaced persons with disabilities, identify gaps and good practices and
make concrete recommendations on how to improve services, protection and participation for this
neglected population.

Fuel and firewood

 55

The collection, supply and use of firewood and alternative energies in humanitarian settings has been
associated with a variety of harmful consequences, including but not limited to: rape and assault during
firewood collection, environmental degradation and respiratory and other illnesses caused by the indoor
burning of biomass materials. The Women's Refugee Commission 2006 report, Beyond Firewood: Fuel
Alternatives and Protection Strategies for Displaced Women and Girls, helped place this crucial health,
environmental and security issue on the humanitarian agenda. We worked with key partners throughout
the humanitarian system to create the Inter Agency Standing Committee Task Force on Safe Access to
Firewood and alternative Energy in Humanitarian Settings.

Gender-based violence

The Women’s Refugee Commission has been a leading proponent of efforts to promote women’s
empowerment, gender equality and protection against gender-based violence. We have advocated for the
passage of landmark Security Council resolutions on the protection of women and children. Our
groundbreaking 2002 report If Not Now, When? documented the shortcomings of previous efforts to
address GBV.

Livelihoods

The Women’s Refugee Commission researches and develops guidelines on appropriate livelihoods for
displaced women and youth that recognize their skills, experience and capacity. Livelihoods are targeted
towards local markets, are comprehensive in approach, and promote self-reliance that is both dignified
and sustainable.

Sexual and reproductive health

Family planning saves lives, yet it is often neglected in areas affected by conflict or disaster. According to
research the Women’s Refugee Commission conducted in five
countries: Djibouti, Jordan, Kenya, Malaysia and Uganda, access to and use of family planning tends to
be even lower among refugees than among those living in surrounding communities. To address this, the
Women's Refugee Commission has developed informational materials using pictures that clearly explain
how family planning works, what its benefits are and where it can be obtained. These materials can be
adapted to different cultural contexts.

Women, peace and security

The Women's Refugee Commission works for full implementation of the Women, Peace and
Security agenda at the UN. It undertakes advocacy to ensure that the UN and its members support and
recognize the work of women, who are the linchpins of their communities and whose contributions are
key to putting their countries back on the path to peace and security.

Standards of treatment for Children Refugees

Nearly half of all refugees are children, and almost one in three children living outside their country of
birth is a refugee. These numbers encompass children whose refugee status has been formally confirmed,
as well as children in refugee-like situations. In addition to facing the direct threat of violence resulting
from conflict, forcibly displaced children also face various health risks, including: disease outbreaks and
 56

long-term psychological trauma, inadequate access to water and sanitation, nutritious food, and regular
vaccination schedules.

Protection for children

Legal protection

The Convention on the Rights of the Child, the most widely ratified human rights treaty in history,
includes four articles that are particularly relevant to children involved in or affected by forced
displacement:

I. the principle of non-discrimination (Article 2)

II. best interests of the child (Article 3)
III. right to life and survival and development (Article 6)
IV. the right to child participation (Article 12)

States Parties to the Convention are obliged to uphold the above articles, regardless of a child's migration
status. As of November 2005, a total of 192 countries have become States Parties to the
Convention. Somalia and the United States are the only two countries that have not ratified it.

Other international legal tools for the protection refugee children include two of the Protocols
supplementing the United Nations Convention against Transnational Organized Crime which reference
child migration:

I. the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and
Children;
II. the Protocol against the Smuggling of Migrants by Land, Sea, and Air.

Additionally the International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families covers the rights of the children of migrant workers in both regular and
irregular situations during the entire migration process.

Protection of child

Investing in National Child Protection Systems

UNHCR aims to increase the non-discriminatory access of refugee children to national child protection
systems, to expand the capacity of these services to respond to the increased number of children in the
territories of host countries, and to improve the quality of these services in line with international
standards. Key actions include offering technical and financial support, training government and national
civil society child protection actors, and advocating for policy development or reform. In the first half of
2014, UNHCR provided specialized training on child protection to more than 3,692 government, UNHCR
and partner staff.

Strengthening Advocacy and Partnership

UNHCR works in partnership with governments, civil society, UN and other actors to advocate for
resources and policy and legal reform needed to better protect refugee children. Key advocacy initiatives,
 57

such as “The Big Heart Campaign for Syrian Refugee Children”, launched by Her Highness Sheikha
Jawaher bint Mohamed Al Qasimi, and the “No Lost Generation” initiative, have garnered increased
commitments to, and funding for, child protection and education in the region.

Supporting Children, Families, and Communities to Better Protect Refugee Children

UNHCR works to strengthen the capacity of children and adults to help children overcome the effects of
conflict and displacement, and protect them from further violence, abuse, neglect and exploitation.
Throughout the region, UNHCR and partners have engaged more than 85,000 women, men, girls and
boys in discussions on how they and others in their communities could better protect children.

Bringing Quality Education to Every Refugee Child

UNHCR aims to increase the participation of refugee children in formal education and to ensure that
schools offer them safe and supportive environments. The percentage of Syrian refugee children who are
out of school in MENA host countries was successfully reduced from 70 per cent in August 2013 to 49
per cent in July 2014, with the most progress noted in Jordan and Egypt.

Giving Every Refugee Child a Legal Identity: Birth Registration

In keeping with its global strategy on civil registration, UNHCR works with State authorities throughout
MENA to reduce procedural barriers to birth registration, advocates for policies recognizing the right of
all children to be registered at birth irrespective of their status, and undertakes campaigns to raise
awareness among refugees on how to register new births. In Lebanon, Jordan and Iraq, UNHCR and
partners have distributed 250,000 leaflets explaining birth registration procedures.

Providing Refugee Children with Specialized Child Protection Services

Specialized services are provided urgently to children who are unaccompanied or separated, or who
experience violence in their homes or schools, child labour, trafficking, or sexual and gender-based
violence(SGBV) ,including early marriage, or who have disabilities. In the first half of 2014, over 11,000
children received specialized child protection services while, in Lebanon and Jordan, over 28,000
children who were at risk of, or survivors of, gender-based violence benefited from prevention or
response services from UNHCR and partners.

Promoting Family Unity and Protecting Unaccompanied and Separated Children

UNHCR works with partners to identify unaccompanied and separated children in a timely manner,
assess the extent of family separation and the situation of affected children, conduct a best interest
assessment for each child and promote the reunification with family members through family tracing and
verification. UNHCR focuses on preserving family unity at all stages of displacement, which includes
avoiding the separation of children from their families at the border, as well as preventing secondary
separation after arrival in the country of asylum. Where family reunification is not possible, UNHCR
seeks appropriate, family-based alternative care arrangements, in line with the child’s best interests. For
instance, more than 89 per cent of unaccompanied children were reunited with their family members in
Jordan in 2014 .

Preventing and Responding to Early Marriage

 58

UNHCR focuses on preventing early marriage and mitigating the risks faced by children who are already
married. Prevention is undertaken through a wide range of actions including: assisting socio-economically
vulnerable families; supporting women, girls, boys and men to advocate for change to social norms that
condone early marriage and to raise awareness of the risks of early marriage; promoting girls participation
in education; and strengthening legal and policy frameworks to discourage early marriage. For instance,
in Algeria, UNHCR uses school attendance records to identify girls and boys who are at risk of early
marriage or who are already married and, subsequently, provides multisectoral assistance to them. Multi-
sectoral assistance includes legal aid, psychosocial support, protection monitoring, and specialized child
protection services.

Protecting Children from Child Labour

UNHCR seeks to address the underlying factors of child labour, such as poverty, social attitudes
condoning the practice, and demand from economic sectors where child labour is prevalent. To help
mitigate poverty, UNHCR and partners offer vocational training, literacy and life-skills opportunities, as
well as cash assistance, food vouchers, and core relief items to refugee families who are socio-
economically vulnerable. UNHCR also works with governments to strengthen existing legal and policy
frameworks for the protection of children from child labour, with a particular emphasis on the worst
forms of child labour, and to ensure that children involved in child labour benefit from multisectoral
services. More than one million Syrian refugees have received in-kind assistance, cash or vouchers,
helping to reduce their economic vulnerability.

Protecting Children from Trafficking and Exploitation

In certain sub-regions of MENA, a high number of refugee children may travel alongside adults in mixed
migratory movements. These factors expose them to risks of being sold, enslaved, trafficked, or sexually
or economically exploited. To mitigate these risks, in Yemen and North Africa, UNHCR and partners
advocate for child-sensitive reception facilities and alternatives to detention. Protecting Children at Risk
of Detention. UNHCR supports States to develop and strengthen child-sensitive asylum laws and
migration policies and works with partners to promote alternatives to detention.

Qs. Durable solutions to refugee problem

Ans.We propose 8 principles that a general framework for durable solutions should be based on:

1) Perceiving durable solutions as protection – An idea so vital that it has to be at the basis of the
framework (foundation)[7] but also an aim (i.e. a principle). Traditional refugee protection and durable
solutions need to co-exist.

2) Respecting the human rights principle of non-discrimination – Different solutions can be applied to
different scenarios, but any difference in treatment needs to be justified and always be based on the best
interests of refugees. Non-discrimination needs to be present throughout refugeehood.

3) Commitment to not establishing limitations on human rights – Integral protection is the aim, and
the most comprehensive protection should always be the goal. Refugees should not suffer excessive or
unjustified restrictions on their human rights because of their refugee condition.
 59

4) Balancing States’ interests and refugees’ needs – This is part of the goal of the framework but needs
to also figure as an aim (i.e. principle), as it is a guideline when looking for solutions. Benefiting States,
local host communities and refugees seem to be the better way forward in securing long-term adequate
solutions[8].

5) Prioritising the best interests of refugees – if respect for principle 4 in its entirety is not possible and
a choice between States’ interests and refugees’ needs is in order; the protection of refugees needs to be a
priority.

6) Involving refugees in seeking and implementing durable solutions – Refugees should have an
active part in the decisions on the solutions for their cases, thus respecting not only autonomy and
individuality, but also increasing the chances of successful solutions through empowerment. The best
mechanisms to use to give a voice to refugees needs to be sought on a case-by-case basis.

7) Seeing durable solutions as part of a non-hierarchical toolbox – No a priori preferences among the
existing durable solutions should guide action and options in each case. All possibilities need to be taken
into consideration to find the most adequate durable solution in a particular situation.

8) Choosing the best solution for each case – Taking into account particularities and peculiarities as
much as possible and to address them in a principled way. This would entail, at the very least, the
incorporation of a gender, age and diversity approach in all solution-seeking actions; and would allow for
the inclusion of other perspectives on vulnerabilities and particular situations of refugees.