Conflict Displacement and Legal Protection

Understanding Asylum, Human Rights and Refugee Law

Charlotte Lülf

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429831232
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

While the 21st century bears witness to several conflicts leading to mass displacement, the conflict in Syria has crystallised the need for a solid legal framework and legal certainty.

This book analyses the relevant legal instruments for the provision of a protection status for persons fleeing to Europe from conflict and violence. It focuses on the conceptualisation of conflict and violence in the countries of origin and the different approaches taken in the interpretation of them in the 1951 Refugee Convention, the Recast Qualification Directive of the European Union and the European Convention on Human Rights. It traces the hierarchical order of protection granted, starting with refugee protection status, to subsidiary protection status and finally with the negative protection from non-refoulement. Recent case law and asylum status determination practices of European countries illustrate the obstacles in the interpretation as well as the divergence in the application of the legal instruments.

The book fills an important gap in examining the current practices of key actors, including the United Nations High Commissioner for Refugees and European states, tracing changes in national and international policies and revealing discrepancies towards contemporary approaches to conflicts. It refines the interaction and cross-fertilisation of the different relevant fields of European asylum law, human rights law and the laws of armed conflict in order to further the development of a harmonised protection regime for conflict-induced displacement.

1 Introduction

1.1 A first glance at the book

Protracted humanitarian crises, failing states, natural disasters and recent armed conflicts such as those in Syria, Afghanistan, Iraq or Libya have led to extensive mixed migration movements to neighbouring countries and prominent regions of destination. The total number of forcibly displaced persons reached a record high of 68.5 million at the end of 2017.¹ Some of the affected persons flee persecution, some flee the violence of conflict, while others leave for a variety of different reasons. More often than not, they leave because of a combination of these various driving factors. A highly fragmented legal framework attempts to deliver regulation and protection² for those displaced in today’s world of internal, cross-border and intercontinental mobility. The diverse reasons for flight, however, hinder the application of pertinent legal regimes. To complicate matters further, the legal status of those individuals arriving in receiving countries is far from clear-cut or consistent.³

While the 21st century bears witness to several armed conflicts resulting in displacement within the affected country or region or across the globe, the ongoing conflict in Syria is the most recent example and source of forced displacement. It has exposed and highlighted the need for a solid legal framework and legal certainty in the application of protection provisions. By mid-2017, over 5.6 million people had fled Syria and been registered as refugees by the United Nations (UN) High Commissioner for Refugees (UNHCR) in the five neighbouring countries alone.⁴ Former High Commissioner António Guterres deemed the displacement caused by the Syrian armed conflict “a refugee outflow […] at such a frightening rate [not seen] since the Rwandan genocide almost 20 years ago”, “the largest crisis of forcible displacement in the world, and […] a growing threat to regional peace and security”.⁵ Due to the challenging combination of high displacement numbers and, in particular, inconsistent and changing determination practices concerning Syrians seeking protection in Europe, this analysis uses both this conflict and other situations of violence as examples to illustrate the relevant legal bases for status determination.

The 1951 Convention Relating to the Status of Refugees (hereafter the 1951 Convention) and its 1967 Protocol, the fundamental pillars of international refugee law, establish protection for individuals who have crossed an international border, fearing persecution based on religion, race, nationality, political opinion or membership of a social group. The existing legal framework, established in the aftermath of the Second World War, is, however, perceived as failing to address the size, scale and character of modern forced displacement, particularly displacement from conflict and violence.⁶ The individualistic focus of the 1951 Convention seems contradictory and inappropriate when applied to mass displacement of citizens from countries in conflict. The occurrence of conflict alone does not trigger the application of the 1951 Convention and its protection framework. It excludes those who are not persecuted individually for the discriminatory reasons codified in the Convention. Does this affect persons fleeing generalised situations of violence?⁷ One has to question whether this generally excludes the application of refugee law to situations of conflict. Further, it must be addressed to what extent other legal fields trigger protection. Despite the 1951 Convention’s salient position in refugee protection, the broader protection framework has evolved through its interrelationship with neighbouring fields of law, such as human rights law, humanitarian law and developing asylum schemes. Their influence and application are particularly relevant for persons fleeing the consequences of conflict in their countries of origin.

1.2 Context considerations

Flight from conflict is one major component of the larger phenomenon of forced displacement and forced migration movements, both internally, i.e. within the affected state’s borders, and across the globe. With its increasing effects, not only for the neighbouring region but also for other prominent states of destination,⁸ mirrored in increasing numbers of asylum applications, forced displacement is now a significant item both on the international community’s agenda and in public and academic discourse.

1.2.1 “Who is Who”? The complexity of mixed migration movements

Migration may be a reaction to deteriorating circumstances in the country of origin, such as ‘sudden’ disasters, whether natural or man-made. While it may take the form of forced displacement, anticipatory voluntary movement can, but need not, be the reaction to negative changes in living conditions, such as slow onset disasters.⁹ International migration is “[u]sually termed regular or authorised migration and principally a voluntary movement of people seeking better economic and social opportunities, as well as different life experiences and lifestyles”.¹⁰ However, migration movements are prone to change; drivers of displacement are not constant and patterns of dislocation change rapidly.¹¹ “[P]eople flee because of multiple causes of violence, exclusion, environmental degradation, competition for scarce resources and economic hardship caused by dysfunctional states. Some leave voluntarily, some flee because there is no other choice.”¹²

Institutionally, as well as legally, the traditional approach to leaving one’s country is twofold. One is persecuted for certain reasons and qualifies as a Convention refugee, or one cannot qualify as such and is treated as a migrant instead. The legally clear distinction between refugees and migrants and the need for international protection for the former, in particular, were institutionalised after the Second World War. It was mirrored in the establishment of the UNHCR and the International Organisation for Migration (IOM) and codified in the clearly demarcated regime of refugee protection, excluding the category of voluntary migrants and other categories of forced migrants.¹³ The legal distinction between these different types of displaced persons is enshrined in a detailed framework of status determination procedures that aims at ensuring the correct attribution of a specific legal status and an attached set of rights for its legitimate owner: “Refugee law is anchored in a belief in status. It is reflective of the idea that individuals and groups can be identified by falling within a carefully defined legal construct.”¹⁴ The reality of migration and flight movements, however, does not follow such clear-cut and distinguishable legal categories. The complexity of forms of persecution and ill-treatment, together with rights violations ranging from civil and political to socio-economic, blurs the lines separating the artificially construed categories of persons. The status determination process is further aggravated by the flight and migration patterns, which are characterised by mixed migration movements.¹⁵ “The increasingly ‘mixed’ nature of migratory movements, that is of movements whose participants have differing motivations, objectives and needs, necessarily means that refugees and migrants will often be travelling together.”¹⁶

Despite differences in their entitlements, refugees and conflict-displaced persons enjoy no additional access rights or legal channels to enter countries of asylum than migrants. This practice has become apparent in the European states over the last years. Recognition rates for persons originating from certain countries in conflict have risen, and some European countries have used their discretionary powers to decide that Syrians, for instance, are to be granted protection. However, legal access to Europe, such as with visas issued by embassies, remains closed.¹⁷ This is in line with the increasingly draconian approach of states to the management of immigration, expressed through the restriction of visa applications, enforcement of carrier sanctions and continuous strengthening of external border controls. Refugees and other forced migrants, therefore, have to resort to irregular migration routes to get to Europe and entering without the necessary authorisation. The death toll of the last years is symptomatic of these developments¹⁸: “Irrespective of the cause of displacement, [people] use similar routes, modes of travel and aim for similar destinations; increasingly resort to organised movement and the assistance of people smugglers”.¹⁹

The current context of mass displacement and mixed mass movements to potential host countries challenges the application of the pertinent legal instruments. Lacking legal access opportunities, refugees and those displaced due to conflict mix with other migrants on their flight routes and further aggravate tensions in the application of the already disputed protection status.

1.2.2 Forced displacement by violence and conflict – challenges to a legal framework

Displacement is rooted in conflict but also begets conflict itself.²⁰ Sadako Ogata, former High Commissioner for Refugees, emphasised in 1998:

The root causes of refugee displacement are inextricably linked to conflict, persecution and the denial of human rights. The very existence of refugees and other forcibly displaced people is therefore a barometer of a society’s incapacity to resolve its differences by peaceful, rather than violent, means.²¹

UN Security Council resolutions concerning the conflicts of the 2010s have expressed equally the Council’s awareness of conflict-induced displacement and its potential to exacerbate violence in both the country and the region.²² To leave one’s home and one’s country is a decision seldom taken lightly, even in the case of conflict. The dynamics of displacement reportedly change during the continuation of conflict. The hope of having to leave only temporarily often results in internal displacement or displacement to directly neighbouring countries. With the increasingly protracted character of conflicts, people are forced to seek more permanent or more promising solutions.²³ This results in onward or secondary movement of displaced persons from the region to hopeful countries of destination.²⁴ The international and regional framework governing these movements, however, struggles to keep up.

The conceptualisation of a refugee and refugee law as such disrupts the generally clear separation between, on the one hand, a state and its citizens and, on the other hand, other states and their distinct sovereign spheres. The concept of ‘refugeehood’ is based on the flight from one sovereign state into the power and jurisdiction of another and thereby across the borders that normally separate inclusion and exclusion of membership. While the primary responsibility for nationals theoretically remains with the state of origin, the refugee is unwilling or unable to avail her- or himself of protection of the country of origin, which is either the persecutor itself or incapable of protecting its citizens from harm. The first commentary to the 1951 Convention characterised refugeehood primarily through this ruptured bond between a state and its citizens.²⁵ This ruptured bond makes the refugee a specific kind of foreigner to whom the new destination society owes specific duties.²⁶ As such, refugee status has and still “represents a privileged form of migration”.²⁷

Flight from violence and conflict has a distinct and disputed place in the evolution of international refugee and asylum law. Since the 1950s, both the field of law and the notion of who is worthy of protection have expanded. The 1951 Convention was adopted decades ago, and contemporary shortcomings in its application might stem from being outdated. While the Convention is still at the centre of global refugee protection, regional refugee instruments have developed and expanded the exclusive concept of the Convention refugee. UNHCR’s mandate has broadened in this regard and now covers many more persons of concern – including other de facto but not de jure refugees. Persecution by reason of the Convention grounds is no longer the essential criterion to distinguish a refugee from other forced migrants in many African, Latin American and Asian countries. The extended refugee definitions specifically ...