Armed Conflict in Asylum Law: The "War-Flaw"

Abstract

This article charts the difficulties refugee law – and more widely the legal regime governing international protection – has encountered from the outset in dealing with asylum-related claims by persons fleeing armed conflict. It analyses the origins of the prevailing “exceptionality approach”, which regards such claims as unable to succeed unless they can make out a special case. It explains why its opposite, the “normalcy approach”, equally does not resolve underlying problems. The “war-flaw” is seen to consist in the failure of international protection to analyse claims by persons fleeing armed conflict by reference to the correct international law framework. Whilst the development within refugee law of a human rights approach has been a major achievement, its inability to deal effectively with armed conflict-related claims is located in its conspicuous failure, or unwillingness, to recognize that international law regards international humanitarian law as the lex specialis in situations of armed conflict. Curiously, despite the increasing acknowledgment of the complementarity of international human rights law and international humanitarian law by human rights bodies, the human rights paradigm remains stuck trying to analyse such situations exclusively in international human rights law terms. It is argued that this “war flaw” afflicts not only contemporary refugee law but also current human rights jurisprudence dealing with problems of refoulement, and regional protection schemes such as subsidiary protection within the European Union. Tentative suggestions are made as to how the prevailing international human rights law paradigm can be revised to take account of international humanitarian law and as to how the two branches of international law can be applied in tandem.