Of War, Flows, Laws and Flaws: A Reply to Hugo Storey

Abstract

This contribution is meant as a counterpoint to a recent RSQ article by Hugo Storey on the inter-penetration of international humanitarian law (IHL) and refugee law. In lieu of Storey’s pivotal concept of armed conflict, this analysis is articulated around a discussion of discriminate and indiscriminate violence, informed by the basic distinction under international law between refugee protection and other forms of extra-territorial protection. ‘Victims of armed conflict’ who find themselves outside their countries of nationality qualify for extra-territorial protection, not as a homogeneous category, but on a number of distinct and different grounds, which respect a logic that cannot be reduced to a simple IHL paradigm. In particular, to take IHL as a starting point for the assessment of refugee claims under the 1951 Convention obscures the fact that persecution – the central concept in refugee law – often occurs in the midst of, and at times by means of, armed violence. While ‘matters of armed conflict’ would be expected to assume greater prominence in the application of complementary (regional) refugee criteria, such as those found in the 1969 OAU Convention or the 1984 Cartagena Declaration, the IHL reading of these additional grounds has failed to explore the causal link between the conduct of belligerents and displacement or flight. As for the significance of armed conflict and other IHL-looking concepts in Article 15(c) of the EU Qualification Directive, it is marred by the convoluted language of this compromise provision, which has not been remedied by the interpretive acrobatics of the European Court of Justice. In the final analysis, the most relevant question is the following: what rights and/or interests, threatened by armed violence, are protected by Article 15(c), that are not covered by Article 1 A(2) of the 1951 Refugee Convention? Recent research into the causes and character of armed conflict and the effects on civilians’ survival strategies points to the continuing inability of existing legal definitions to answer the above question in ways that meet the needs of today’s refugees. The article suggests a few avenues to confront this practical ‘war-flaw’, including a reflection on the non-refoulement potential of customary rules of IHL.