Global Trends

There are three bodies of international law that related to people in crisis situations. They are refugee law, international humanitarian law, and human rights law. There is also an emerging principle of international law called the Responsibility to Protect.

Refugee Law

Since Australia’s ratification of the 1951 United Nations Convention Relating to the Status of Refugees it has been obliged to provide asylum to refugees fleeing persecution. Under the Refugee Convention, Australia is not allowed to expel or return refugees (article 33). People who arrive on Australian territory by plane, boat or any other mode of transport to seek asylum are not in violation of the law. They are simply applying for rights that all Australians would expect to receive if forced to flee war or persecution.

A refugee is:

“A person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.”

Under the Refugee Convention, refugees;

Are entitled to international protection
Have the same basic rights as other citizens and residents of the host country
May not be discriminated against due to their status as refugees

Refugees are non-combatants. Therefore,

Armed groups involved in armed conflict are not entitled to international protection
Individuals who stand accused of crimes committed during armed conflict are not entitled to international protection
Refugee settlements must be of a civilian nature

If you are a refugee, there are three main durable solutions for you;

Repatriation
Voluntarily repatriating back to your country of origin once the fighting or threat of persecution has stopped
Local Integration
Settling into the host country where you initially sought protection
Resettlement
Resettling in a third country (this is often the only viable option where the threat of persecution is ongoing, and local integration is undermined by instability in the host country, unjust local laws and/or customs

Unfortunately many refugees are unable to take advantage of these three durable solutions, and effectively remain “warehoused” in camps or urban dwellings for long periods of time.

Human Rights Law

The key bodies of Human Rights Law are:

Universal Declaration of Human Rights (1948)
Convention on the Prevention and Punishment of the Crime of Genocide (1948)
International Convention on Civil and Political Rights (1966)
International Convention on Economic Social and Cultural Rights (1966)
International Convention on the Elimination of All Forms of Racial Discrimination (1965)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
Convention on the Rights of the Child (1989)
Optional Protocol on the Involvement of Children in Armed Conflict

Under these instruments of international law, human beings have a set of “non-derogable Rights”. These rights cannot, under any circumstances, be denied to any human being. Non-derogable rights include the;

Right to life
Freedom of thought, religion and beliefs
Right to be acknowledged as an individual before the law
Freedom from torture and cruel and unusual punishment
Freedom from enslavement
Right not to be imprisoned for debt
Freedom from retroactive punishment

Human beings also have a set of derogable rights. These rights are human rights, however they may be curtailed in extreme circumstances such as war or emergency. Derogable rights include:

Freedom of movement
Freedom to engage in employment
Freedom of association
Right to education

International Humanitarian Law

International Humanitarian Law is, in essence, the “Law of Armed Conflict”. That means humanitarian law places limits on how war is conducted for humanitarian reasons. The main international agreements underpinning international humanitarian law are the Geneva Conventions.

International humanitarian law emphasises:

The distinction between combatants and non-combatants
Proportionality of military action to military objective
Precautionary steps taken to minimise harm to civilians resulting from military action

Under international humanitarian law the following acts are prohibited:

Attacks which are not or cannot be directed at a military objective
Attacks against civilian persons and civilian property; this includes all acts of violence whether committed in offence or defence
Attacks or threats intended to terrorise the civilian population
Starvation of the civilian population
Objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas, crops, livestock, drinking water installations and irrigation works may not be attacked, destroyed, removed or rendered useless
Use of a civilian population as a shield
Collective punishment
Taking of hostages
Outrages on personal dignity, in particular humiliating and degrading treatment, enforced prostitutions and any form of indecent assault
Torture (physical and mental), mutilation or rape
Improper use of humanitarian facilities, such as the Red Cross emblem

Under international humanitarian law, the following steps must be taken or are encouraged:

Evacuation of the civilian population in order to secure their protection and/or in the case of legitimate military purpose. Evacuation may only be undertaken once suitable conditions have been prepared
Wounded and ill people must be treated humanely and given assistance based on need and without discrimination
Evacuation of severely ill, disabled or those otherwise requiring immediate medical attention.
The mobility of religious and humanitarian personnel as well as humanitarian assistance necessary for survival
The organisations of the Red Cross must be assisted and not inhibited from carrying out their humanitarian tasks
Persons carrying out humanitarian tasks must be respected and protected
Children must be especially respected and protection from violence
Separated families must be assisted to reunite
Safety zones and neutral zones may be established as protected areas

Responsibility to Protect

The nature of armed conflict has changed since the end of the 20th Century. In most cases war between nation states has been replaced by internal conflicts. This means governments or States wage war against non-state actors more frequently than against other States.

The international community failed to prevent or stop the mass genocides in Cambodia, Rwanda and Bosnia, as well as crimes against humanity in Kosovo, East Timor and Darfur. Since these failures, there has been a recognition of the need to strengthen the international legal framework regarding the obligations of states to protect people from human rights abuses. Now it is understood that the security of the community and the individual must be protected, not only the State.

On 15 September of 2005, at the occasion of the UN World Summit celebrating 50 years of the United Nations, the international community agreed on the need to protect civilians from mass human rights abuses wherever they may be found.

Later, on 28 April 2006 the international community adopted Security Council Resolution 1674. This resolution reaffirmed the newly formed principle of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

The essence of the principle is that sovereign states, first and foremost, have the responsibility to protect their citizens from genocide, war crimes, ethnic cleansing and crimes against humanity. However, where the state is unable or unwilling to exercise this responsibility, the international community has the responsibility to assist in doing so, or in extreme cases, do so of its own accord.

More information on the Responsibility to Protect principle can be found at www.responsibilitytoprotect.org