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• > Journals
• > International Review of the Red Cross
• > Volume 99 Issue 904: Migration and displacement
• > The protection of migrants under international humanitarian...

Article contents

Introduction, general considerations on the protection of migrants in armed conflicts, how are migrants covered by ihl in international armed conflicts, how are migrants covered by ihl in non-international armed conflicts, select ihl issues of relevance in the context of migration, the protection of migrants under international humanitarian law.

Published online by Cambridge University Press:  22 May 2018

The movement of migrants across international borders may result in grave humanitarian consequences and protection and assistance needs for those involved. Although many reach their destinations safely, others may find themselves in a country experiencing armed conflict – either because they live there or are travelling through there – and may endure great difficulties and be particularly vulnerable. In these situations, as civilians, migrants are protected under international humanitarian law (IHL) against the effects of hostilities and when in the hands of a party to the conflict. This article will provide an overview of the protection afforded by IHL to migrants as civilians in international and non-international armed conflicts. It will then examine more closely certain particularly relevant rules for the issue of migration, notably those related to the movement of migrants, family unity, and missing and dead migrants. In this way, this article will show that IHL provides important legal protections for migrants finding themselves in situations of armed conflict.

Armed conflicts in various parts of the world, including Afghanistan, the Central African Republic, the Democratic Republic of the Congo, Somalia, South Sudan and Syria, continue to cause immeasurable hardship for entire populations, prompting increasing numbers of people to flee within countries or across international borders. By the end of 2015, the number of refugees, asylum-seekers and internally displaced persons forcibly displaced worldwide due to armed conflicts, other situations of violence, persecution or human rights violations reached an unprecedented 65.3 million. Footnote 1 In 2015, the number of migrants Footnote 2  – a term covering a broad set of persons, including refugees as a specific legal category under international refugee law – reached 244 million worldwide. Footnote 3 Among the migrants who have left their countries of origin or of habitual residence (whether forcibly or voluntarily), many can subsequently find themselves in a third country experiencing armed conflict. In these situations, migrants, like the rest of the civilian population, endure great difficulties. They may be affected by the hostilities, lose contact with their families, go missing or die, often with no record of their fate or whereabouts. As foreigners, they tend to have additional vulnerabilities, encountering problems in accessing basic services or being subjected to restrictions of personal liberty. They may also be at risk of being sent back to their countries of origin or to other countries, potentially in violation of international law.

The migration discourse today focuses primarily on the movement of migrants in the Mediterranean, the Americas and beyond, towards European or North American land borders and shores. In these discussions, the plight of migrants in their country of origin, along the migration routes and in third countries where they reside (temporarily or permanently) is often largely forgotten and their protection and assistance needs not adequately addressed. Footnote 4 Notably, migrants who live in – or are crossing through – countries affected by armed conflict may be particularly vulnerable. This article primarily seeks to address the case of migrants caught in situations of armed conflict and how they are protected under international humanitarian law (IHL), rather than migrants in countries of destination. However, several IHL rules are also pertinent for migrants who have fled for reasons related to an armed conflict and who find themselves in a destination country that is at peace. This article will thus also briefly refer to some of these rules, such as the obligations of parties related to the re-establishment of family links and to accounting for the dead and the missing. These may continue to apply to migrants who no longer find themselves in a country in conflict, or beyond the end of an armed conflict.

In all situations, migrants are protected by different bodies of international law within their respective scopes of application, in particular international human rights law (IHRL) and, in the case of refugees and asylum-seekers, international refugee law. These bodies of international law remain applicable in situations of armed conflict. Footnote 5 Migrants are also protected by the domestic law of the State they are in. When migrants live, or are in transit, in the territory of a State in which there is an armed conflict, Footnote 6 they are also protected by IHL. While only applicable in armed conflicts, certain rules of IHL should already be considered in peacetime, and some remain applicable even after the end of an armed conflict. The latter is the case for situations that are the direct consequence of, or are directly related to, an armed conflict or occupation and whose effects extend beyond the conclusion of these. Footnote 7 As a result, even if an armed conflict has come to an end or a migrant is no longer on the territory of a country experiencing armed conflict, they may continue to enjoy protection under certain rules of IHL. Footnote 8

This article will explore how IHL protects migrants in situations of armed conflict. Although other branches of international law will be mentioned where relevant, a detailed analysis of these and their interplay with IHL are outside the scope of this article. Footnote 9 In the first part, the article will provide an overview of how the term “migrant” is used and address general issues relating to the protection of migrants in armed conflicts. It will also examine the IHL principle of non-discrimination, which provides an overall framework for considering the protection of migrants. The second part will survey the different categories of persons that migrants can fall under in IHL as well as in other bodies of international law, and the rules applicable to migrants in international armed conflicts. The third part will look at these issues in the context of non-international armed conflicts. Finally, the fourth part will consider select IHL issues that are particularly topical for migration, notably those related to the movement of migrants as well as to family unity and the rules concerning the missing and dead. Given the large number of relevant rules, this last section will not aim to be exhaustive, either in the themes that it covers or in the way it addresses them.

Who are “migrants”, and how does IHL address their protection?

In international law, there is no universally accepted definition of the term “migrant”, although some categories are defined in specialized international instruments. Footnote 10 Furthermore, various organizations define a migrant as “any person who is outside a State of which he or she is a citizen or national, or, in the case of a stateless person, his or her State of birth or habitual residence”. Footnote 11 The International Committee of the Red Cross (ICRC), and the International Red Cross and Red Crescent Movement (the Movement) as a whole, use a broad description as provided for in the IFRC Policy on Migration, which covers “persons who leave or flee their habitual residence … to seek opportunities or safer and better prospects”. Footnote 12 This article will rely on this understanding of migrants, as an “umbrella category” for different categories of persons. It will also refer to specific legal categories, including refugees Footnote 13 and stateless persons, when addressing the special protection to which they are entitled under IHL (and other bodies of international law).

When it comes to the protection of migrants under IHL, an important starting point is that this body of law does not contain specific rules about migration or about the protection of migrants as a category of persons. This does not, however, mean that migrants are left outside the scope of IHL or that they are neglected by it. As civilians, migrants are covered by the rules providing general protection to the civilian population in both international and non-international armed conflicts. In international armed conflicts, migrants are also protected as aliens in the hands of a party to the conflict or occupying power provided that they are “protected persons” Footnote 14 and may enjoy protection as “refugees”. Footnote 15 To determine how migrants are protected under IHL, the second and third parts of this article will look at the distinction between “civilians” and members of the armed forces or members of an organized armed group in international and non-international armed conflicts respectively. As most migrants are considered civilians, the focus of this article will be on their protection under IHL as civilians. Footnote 16 It will also examine who is considered a “protected person”, a “refugee” and/or a “stateless person” in international armed conflicts, and how migrants fit into these categories.

The principle of non-discrimination

International humanitarian law confers protection on migrants as civilians, irrespective of their migratory status, and adverse distinctions cannot be made on the basis of that status. Under this body of law, certain distinctions can nevertheless be made, for instance based on nationality. As migrants may be more vulnerable to discrimination than nationals of a State due to their origin, ethnicity, race or nationality, it is important to briefly consider the principle of non-adverse distinction under IHL, which is found in many specific provisions of the Geneva Conventions and their Additional Protocols. Footnote 17 This is IHL's approach to the principle of non-discrimination in international human rights law. Footnote 18 Unlike general non-discrimination provisions in IHRL, Footnote 19 IHL does not expressly require equal treatment for all individuals. Footnote 20

Under IHL, the principle of non-adverse distinction prohibits certain distinctions while allowing – and even requiring – in some circumstances that individuals be treated differently to ensure humane treatment. Footnote 21 For instance, IHL contains several provisions that justify differential treatment based on a person's state of health, age, sex or rank. Footnote 22 Meanwhile, parties to international and non-international armed conflicts are required to treat civilians and persons hors de combat humanely without “adverse distinction”. The prohibited “adverse” distinctions under IHL are based on several non-exhaustive criteria, which will determine the exact scope of the principle. Footnote 23 The scope will also depend on the persons covered. Footnote 24 Under customary IHL, adverse distinctions based on race, colour, sex, language, religion or belief, political or other opinion, or national or social origin, as well as wealth, birth or other status, or any other similar criteria, are prohibited. Footnote 25

Although “nationality” is not the only basis for potential discrimination against migrants, and it can often be rooted rather in a migrant's origin or race and the fact that they may be in an irregular situation, it remains an important ground. Where not explicitly provided in a rule, nationality should arguably be interpreted as an impermissible criterion for adverse distinction under IHL, except where IHL expressly provides otherwise. Footnote 26 When considering this, it is important to recognize that, during the Diplomatic Conference, nationality was not “regarded as implicitly included” in Article 27 of Geneva Convention IV (GC IV). Footnote 27 The rationale behind this was that the rules of GC IV relating to “protected persons” allow for differences based on a person's nationality, notably on the measures of control and security that may be necessary as a result of an international armed conflict. Footnote 28 Nevertheless, “the absolute obligation of humane treatment contained in Article 27(1) of GC IV exists independently” of the fact that differential treatment is allowed for enemy nationals on certain issues. Footnote 29 Parties to the conflict must treat all protected persons humanely, regardless of their nationality. Under Article 3 common to the four Geneva Conventions, nationality is not explicitly listed as a prohibited criterion for adverse distinction. Footnote 30 This was based on the consideration that the State is at liberty to decide whether it treats aliens involved in a non-international armed conflict differently to its own nationals or not. Footnote 31 While justified, this rationale does not affect the essential premise that all persons who have not participated or are no longer participating in hostilities must be treated humanely without any adverse distinctions. Footnote 32 As noted in the updated Commentary to Geneva Convention I, nationality must “be understood as falling within the concept of ‘other similar criteria’ under common Article 3”. Footnote 33 Finally, the Additional Protocols refer to “national origin” as an impermissible criterion for adverse distinction. Footnote 34 While this term refers to a persons’ ethnic group and not to his or her formal nationality, nationality should at least be regarded as an “other status” or as a status based “on any similar criteria” for the purposes of Article 75 of Additional Protocol I (AP I). Footnote 35 Given that the prohibited criteria should be considered as uniform throughout the Additional Protocols, nationality should be seen as an impermissible criterion for the purposes of those Protocols. Footnote 36

Overview of the protection of migrants in international armed conflicts

In international armed conflicts, migrants enjoy protection, first and foremost, under the general rules of IHL covering the civilian population. In addition, if they are considered protected persons, they also benefit from the protections for aliens in the hands of a party to the conflict or occupying power. Furthermore, certain migrants are specifically protected as “refugees”. When looking at who is a refugee for the purposes of IHL, it is important to note that there are different understandings of who is covered by this term, depending on the applicable rules, and what it means for their protection. Footnote 37 Indeed, a migrant may be considered a refugee for the purposes of Articles 44 or 70(2) of GC IV. If covered by Article 44, he or she is also a protected person under GC IV. Meanwhile, if a migrant is a refugee for the purposes of Article 70, he or she is not a protected person (unless AP I applies and the individual meets the criteria to be considered a refugee). Finally, a migrant may also be a refugee under Article 73 of AP I, in which case he or she would be a protected person for the purposes of GC IV. Although AP I extends protected person status to all those considered refugees, thus increasing protection, the term “refugee” in this instrument has a narrower meaning than under GC IV. The protection of migrants as refugees, and the meaning of the term “refugees” for the purposes of GC IV and AP I, will be further discussed in the sections on “Migrants as Protected Refugees” and “Specific Protection of Migrants as Refugees” below.

Protection of migrants as part of the civilian population

In international armed conflicts, the protection that IHL provides to migrants will depend on whether they are civilians or combatants. Members of the armed forces (other than medical personnel and chaplains) are combatants. Footnote 38 All persons who are not members of the armed forces of a party to the conflict are civilians. Footnote 39 As previously mentioned, although some migrants may be considered combatants in some circumstances, most are civilians.

A number of IHL rules that apply in international armed conflicts protect the entire civilian population, no matter whether a person is a citizen of another State, including a national of an “enemy” State or of a State engaged in an armed conflict with the country in which the person finds him or herself. Since these rules apply to all civilians regardless of their nationality, they also apply to migrants. Migrants who are civilians under IHL are thus protected against the effects of hostilities. For instance, indiscriminate attacks and attacks directed against civilians are prohibited. Footnote 40 It is also prohibited to use starvation of civilians as a method of warfare. Footnote 41 The rules protecting migrants from the effects of hostilities also contribute to preventing and minimizing the displacement of migrants for reasons related to the conflict. Footnote 42 Civilians – including migrants – are protected unless they take a direct part in hostilities; however, even if they do participate, they do not lose their civilian status, and they lose protection against attack only for such a time as they continue to participate. Footnote 43

If migrants fall into enemy hands, their exact protection will depend on their status. Footnote 44 As civilians, migrants are covered by the general rules for the protection of the civilian population contained in GC IV and in AP I. Part II of GC IV, Footnote 45 for the “whole of the populations of the countries in conflict”, extends to all migrants who do not have combatant or prisoner of war (PoW) status. Footnote 46 It introduces minimum safeguards for all civilians, irrespective of their nationality, against “the sufferings caused by war”. Footnote 47

Where applicable, beyond the general rules protecting the civilian population, migrants are also protected by the provisions relating to missing and dead persons in Part II, Section III of AP I, as well as those relating to relief in favour of the civilian population and to the treatment of persons when in the power of a party to the conflict, which are contained in Part IV, Sections II and III Footnote 48 of AP I respectively. Importantly, GC IV and AP I contain rules on the reunion of dispersed families and the search for missing and dead persons. Footnote 49 Given their relevance for the many migrants that become separated from their families, go missing or die during armed conflicts, as well as for their families, these rules will be further explored in the fourth part of this article. GC IV and AP I also include specific provisions governing humanitarian relief, which recognize that the civilian population in need is entitled to receive assistance. Footnote 50 They regulate the conditions for providing humanitarian assistance and require that parties to the armed conflict and all States concerned allow and facilitate relief operations for civilians, subject to their right of control, and the distribution of relief as rapidly as possible, once accepted in principle. Footnote 51 Finally, AP I contains a number of rules, in particular the fundamental guarantees contained in Article 75, that are especially important as they provide minimum protection for all migrants who are in the power of a party to the conflict and do not benefit from more favourable treatment under the Geneva Conventions or under AP I. Footnote 52 Today, the fundamental rules and principles of IHL concerning the treatment of civilians in the hands of the enemy, which are critical for the protection of migrants, are rules of customary international law. Footnote 53

While the majority of migrants are considered civilians under IHL, they may instead, depending on their status under the Geneva Conventions and AP I, Footnote 54 be combatants and, once in enemy hands, enjoy protection as PoWs. For instance, migrants are combatants if they are members of the armed forces of a State involved in an international armed conflict or members of other militias belonging to a party to the conflict fulfilling the conditions set out in Article 4(A)(2) of Geneva Convention III (GC III). Footnote 55 As such, once they fall into the hands of a State party to the international armed conflict in which they are involved, they are entitled to PoW status should they fulfil the conditions set by IHL. Footnote 56 As previously mentioned, this article will focus on the protection of migrants as civilians and will not enter into further detail about the protection of migrants as combatants or PoWs.

Special protection of migrants as protected persons under GC IV

In international armed conflicts, in addition to the general rules covering the civilian population, migrants may benefit from the more detailed and protective regime found in Parts I and III of GC IV if they qualify as “protected persons”. Footnote 57 Many migrants, as aliens present in the territory of a party to the conflict or in occupied territory, will be protected persons if they meet the nationality requirement of Article 4. Footnote 58 However, some migrants are excluded: nationals of the party/power by which they are being held; nationals of a co-belligerent State or a neutral State with normal diplomatic relations (except in the case of occupied territories, where nationals of a neutral State are always protected persons); and persons who enjoy protection under one of the three other Geneva Conventions. Footnote 59 In this way, the nationality criteria of GC IV Article 4 may leave out some migrants who do not in fact enjoy the protection of any State. Footnote 60 For instance, nationals of an occupying power who find themselves in the territory of the occupied State are not protected. Footnote 61 This has led to questions about the adequacy of the definition of “protected persons”. According to some views, “all civilians who do not owe allegiance to, or receive diplomatic protection from, their State of nationality should be recognized as ‘protected persons’” under Article 4 of GC IV. Footnote 62 The International Criminal Tribunal for the former Yugoslavia (ICTY) has held that the crucial factor for determining protection is not the formal link of nationality but rather “the lack of both allegiance to a State and diplomatic protection by this State”. Footnote 63 However, this interpretation has been met with criticism. Footnote 64

Under GC IV, the rules applicable to protected persons, including migrants, depend on the situation in which they find themselves. All protected migrants are covered by Section I common to the territories of the parties to the conflict and to occupied territories. They are entitled to respect for their lives, their dignity, their family rights, and their political, religious and other convictions. They must not be subjected to torture, cruel or degrading treatment or corporal punishment, and must be protected against all acts of violence or reprisals. Section II of GC IV provides additional protection to migrants in the territory of a party to the conflict. Importantly, this section provides that if migrants remain in the country – either by choice or due to detention – their situation will continue to be regulated by the provisions concerning aliens in time of peace. Footnote 65 This includes domestic law as well as IHRL and international refugee law, as applicable. In any case, migrants must be granted a number of rights related to their conditions of living (e.g., the right to receive individual or collective relief, medical attention on an equal footing with nationals, freedom of religion). Footnote 66 Among the relevant provisions in Section II are those relating to the movement of migrants, notably the principle of non-refoulement and the right to leave the territory. Footnote 67 Section II also regulates the measures of control and security that may be taken against protected persons if deemed “necessary as a result of the war”. Footnote 68 According to the Commentary on GC IV, these measures may include restrictions on freedom of movement Footnote 69 or assigned residence and internment, at the most severe. Footnote 70

Migrants in occupied territory are further protected by the rules in Section III of GC IV. As a starting point, the occupying power must respect the laws in force in the occupied territory before the occupation began. Footnote 71 As inhabitants of occupied territory, migrants are protected from arbitrary behaviour by the occupying power. For instance, measures of control must be necessary for imperative reasons of security. Footnote 72 Other provisions of relevance for the protection of migrants are those on the movement of protected persons Footnote 73 as well as on food and medical supplies, relief actions, penal legislation and procedure.

Migrants as protected stateless persons

Stateless migrants also qualify as protected persons under Article 4 of GC IV, as “owing to its negative form the definition covers persons without any nationality”. Footnote 74 GC IV does not define stateless persons; what matters is that a person does not have a nationality. This understanding of “stateless persons” is broader than the definition in the 1954 Convention relating to the Status of Stateless Persons, which was subsequently adopted. The 1954 Convention excludes, for instance, persons already receiving protection or assistance from United Nations (UN) organs different to the Office of the UN High Commissioner for Refugees (UNHCR). Footnote 75

Where AP I applies, “stateless persons” are those covered by “the relevant international instruments”, notably the 1954 Convention, or “the national legislation of the State of refuge or State of residence”. Footnote 76 If persons became stateless before the beginning of hostilities, AP I explicitly includes them in the category of protected persons under GC IV, and they will receive protection as such “in all circumstances and without any adverse distinction.” Footnote 77 Nonetheless, regardless of whether AP I applies, stateless persons (including those who became stateless after the outbreak of hostilities) are in any case already considered protected persons under GC IV, as seen above. Footnote 78 The temporal restriction contained in AP I thus does not have any practical consequences for stateless persons. Footnote 79 Where both GC IV and AP I apply, protected person status extends to “persons who, ‘before or after’ the beginning of hostilities are considered as stateless persons” under relevant international instruments and national legislation. Footnote 80

Migrants as protected refugees

As seen above, many refugees may fall under the definition of “protected persons” in Article 4 of GC IV and benefit from the full range of protections (including Article 44 of GC IV Footnote 81 ). However, there may be some individuals who do not enjoy protection from their State of origin, but who are also not “protected persons” under IHL. Footnote 82 This lacuna resulted in the adoption of Article 73 of AP I. Footnote 83 In addition to stateless persons as seen above, this provision grants refugees, as defined under AP I, protected person status, irrespective of their nationality and of the party into whose power they have fallen. Footnote 84 Refugees are those who (1) are considered as such “under the relevant international instruments accepted by the Parties concerned or under the national legislation of the State of refuge or State of residence”, (2) “before the beginning of hostilities”. These two criteria must be met cumulatively for a migrant to be considered a refugee, qualifying as a protected person for the purposes of GC IV. This is in contrast to Articles 44 and 70(2) of GC IV, which have a broader understanding of the term “refugee” than that found in AP I, as will be seen below. Footnote 85

According to the first criterion in Article 73 of AP I, the definition of a “refugee” is based on binding instruments, such as the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention), and non-binding resolutions and declarations that have been “accepted by the Parties concerned”, such as the Cartagena Declaration on Refugees. Footnote 86 Importantly, the decision of a State to grant refugee status is binding upon all parties to the conflict and they must treat refugees as protected persons, even if they have not accepted the international instrument on which the refugee status determination was based. Footnote 87 They must also respect this decision if it was based on domestic law. In addition, if a State has recognized the competence of UNHCR with regard to persons that the organization considers as refugees based on its mandate, a refugee status determination carried out by UNHCR will also be binding on all parties to the conflict. Footnote 88 The second criterion of Article 73 limits the personal scope to those considered refugees “before the beginning of hostilities”. Footnote 89 This leaves an important gap in protection for those who became refugees after the outbreak of hostilities and are not protected persons under GC IV. This has led to the criticism that the temporal criterion introduces “an arbitrary and unnecessary distinction, in direct contradiction to the humanitarian principles of protection of the Geneva Conventions”. Footnote 90

In sum, where AP I applies, migrants meeting the “refugee” criteria under Article 73 are explicitly recognized as protected persons for the purposes of GC IV “in all circumstances and without any adverse distinction”. Footnote 91 They are entitled to all the protections contained in Parts I and III of GC IV. Footnote 92 This is especially relevant for refugees who are nationals of the occupying power, as it significantly improves their protection beyond merely Article 70(2) of GC IV. Footnote 93 They may not, for instance, be prosecuted or convicted for acts committed or opinions expressed before the occupation, except with respect to breaches of the laws and customs of war. Footnote 94

Specific protection of migrants as refugees

As discussed above, refugees may be considered protected persons under GC IV in some circumstances, and – provided they meet its definition of “refugee” – they will always be considered protected persons where AP I applies. Footnote 95 They are entitled to the full range of protections provided by GC IV and AP I. Footnote 96 Refugees also enjoy special protection under two provisions applying specifically to them: Article 44 of GC IV for protected refugees in the territory of a party to the conflict, and Article 70(2) of GC IV for refugees (not considered protected persons) in occupied territory. The term “refugee” is not defined in GC IV. According to the Commentary on Article 44, it should be given a broader meaning than in international refugee law, which is “too technical and too limited in scope”. Footnote 97 The key consideration for being considered a refugee under GC IV, and for being protected either by Article 44 or Article 70(2), is that the individual in question does not “enjoy the protection of any government”. Footnote 98 All migrants fitting this criterion will be considered refugees. Individuals benefiting from complementary forms of protection and those not falling under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees could nevertheless be considered refugees for the purposes of GC IV. Footnote 99 GC IV would also cover individuals meeting the Refugee Convention inclusion criteria (even if the opposite is not necessarily true). Footnote 100 Unlike for Article 73 of AP I, Article 44 of GC IV does not require that refugees be recognized as such before the beginning of hostilities. Thus, for instance, a person who deserted into the adversary's territory during hostilities would be protected by Article 44 of GC IV in the same way as a person who had been granted asylum before the beginning of the armed conflict.

Refugees who are formally enemy aliens when their country of origin is involved in an armed conflict with their country of asylum no longer have a link of allegiance with their State of origin and are thus not automatically a potential threat to their host State. As enemy nationals on the territory of a party to the conflict, however, they are nevertheless particularly vulnerable to measures of control and security. Article 44 of GC IV recognizes this by adjusting the nationality criteria for the purposes of Article 4 and inviting parties to consider other factors evidencing the “spiritual affinity” or “ideological allegiance” of a protected person. Footnote 101 Although authorized measures of control may still be imposed if refugees represent a danger to the security of the State, Footnote 102 Article 44 requires that, when deciding upon such measures, refugees not be treated as enemy aliens solely on the basis of their nationality. According to the Commentary, beyond measures of control, Article 44 should be applied “in the broadest humanitarian spirit, in order that the maximum use may be made of the resources it offers for the protection of refugees”. Footnote 103

As nationals of the occupying power, refugees finding themselves in a territory occupied by the State from which they fled are not protected persons, unless they are considered refugees under Article 73 of AP I as seen in the section “Migrants as Protected Refugees”, above. As a result, these migrants do not benefit from the additional protection provided to protected persons by Parts I and III of GC IV. Footnote 104 They only enjoy the protection provided to the civilian population Footnote 105 as well as specific protection under Article 70(2) of GC IV, which was developed in response to the precarious position refugees may find themselves in. Although described slightly differently, the term “refugee” for the purposes of Article 70(2) is to be given a similar meaning to that under Article 44 of GC IV. Footnote 106 Unlike Article 44, to benefit from protection under Article 70(2), all persons – whether already recognized as refugees or not – must have reached the occupied territory “before the outbreak of hostilities”. Footnote 107 Article 70(2) prohibits the occupying power from arresting, prosecuting, convicting or deporting refugees from the occupied territory. The exceptions to this are if they committed offences against their country of origin after the outbreak of hostilities, or committed ordinary criminal offences before the outbreak of hostilities that would have justified extradition in time of peace under the law of the occupied State. Footnote 108 Article 70(2) seeks to guarantee that refugees are not punished merely for having sought asylum or for acts resulting in their departure, and that the right of asylum previously enjoyed by them “continue[s] to be respected by their home country”. Footnote 109

Conclusions on the protection of migrants in international armed conflicts

As seen above, all migrants are protected against the effects of hostilities and must be treated humanely under the general rules covering the civilian population. When considered protected persons, all migrants, including refugees and stateless persons, are also entitled to the full spectrum of protection provided by GC IV. Finally, migrants considered “refugees” under GC IV benefit from specific protection under Article 44 of GC IV when in the territory of a party to the conflict or Article 70(2) of GC IV when in territory occupied by their country of origin.

In non-international armed conflicts, there is no combatant, PoW or protected person status. All persons who are not, or are no longer, directly participating in hostilities are protected under the relevant provisions of IHL (i.e., common Article 3, and Additional Protocol II (AP II) in certain kinds of non-international armed conflicts). Footnote 110 According to the Commentary on common Article 3, “[p]ersons taking no active part in the hostilities” Footnote 111 protected under this article are, firstly, civilians, including “former members of armed forces who have been demobilized or disengaged”, and secondly, “non-combatant members of the armed forces” (i.e., medical and religious personnel). Footnote 112 A third category are “members of the armed forces who have laid down their arms and those placed hors de combat ”. Footnote 113 As noted in the Commentary to AP II, the Protocol covers “all residents of the country engaged in a conflict, irrespective of their nationality, including refugees and stateless persons”. Footnote 114

Common Article 3 and AP II do not contain specific references to migrants (or to refugees or stateless persons), but such individuals are protected as persons not or no longer participating in hostilities. They must “in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria”. Footnote 115 According to the Commentary on AP II, although security measures may be taken, these “are without prejudice to the guarantees on the treatment of individuals”. Footnote 116 Migrants are entitled to the fundamental guarantees set out in common Article 3, including the prohibitions on violence to life and person, outrages upon personal dignity and the passing of sentences without a fair trial. Where applicable, AP II contains more specific rules on these prohibitions as well as additional provisions on humane treatment for all persons who do not take a direct part in hostilities, including those subject to a deprivation of liberty. Footnote 117 Migrants are also protected by the rules of customary international law applicable in non-international armed conflict, which include the fundamental guarantees of humane treatment. Footnote 118

Despite the lack of combatant or PoW status in non-international armed conflicts, the distinction between civilians and members of the armed forces of a State and of organized armed groups remains essential to determine who is protected against the effects of hostilities. Footnote 119 For the purposes of the conduct of hostilities, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians. Footnote 120 The armed forces of a State are its regular armed forces as well as other organized armed groups or units that are under a command responsible to the State party. Footnote 121 Meanwhile, the armed forces of a non-State party to the conflict are organized armed groups and consist only of individuals with a continuous combat function. Footnote 122 In non-international armed conflicts, nationality is not relevant as there is no combatant, PoW or protected person status.

As civilians, migrants enjoy general protection against the effects of hostilities, unless and for such a time as they take a direct part in hostilities or if they assume a continuous combat function on behalf of a party to the armed conflict. Footnote 123 They are also covered by the rules protecting the civilian population in Part IV of AP II, including the prohibitions on direct attacks against civilians, acts or threats of violence the primary purpose of which is to spread terror among the civilian population, and the use of starvation as a method of combat. Footnote 124 Migrants are also protected against forced displacement. Footnote 125 In addition, AP II provides that relief actions for the civilian population in need be undertaken subject to the consent of the high contracting party concerned. Footnote 126 Finally, although AP I contains additional – and more detailed – provisions on the protection of civilians in international armed conflicts, customary IHL has extended the applicability of many of these rules to non-international armed conflicts. Footnote 127

As seen, IHL provides important protections in armed conflicts for migrants; some of these are particularly relevant and will be the focus of this part of the article. The first section will examine rules imposing limits on, or permitting, the movement of migrants in international and non-international armed conflicts. It will recall the main features of the principle of non-refoulement under IHL and consider other rules that prevent, or are relevant to, the movement of migrants. The second section will explore the rules relating to respect for family life, the maintenance or re-establishment of family links, and the clarification of the fate and whereabouts of missing and dead migrants.

Rules governing the movement of migrants

The main aim of IHL is to avoid the infliction of suffering, which includes preventing and minimizing the forced displacement of civilians, either across international borders or within a country, because of armed conflicts. It does so through the rules providing protection against the effects of hostilities and the express prohibition of forced displacement. When civilians are nevertheless displaced, IHL requires that they be protected and assisted.

With regard to the movement of migrants, be it their own voluntary movement or that carried out by the parties to the conflict, IHL contains several rules that impose specific and additional limitations and allowances. The lawfulness of such movements will depend on their compliance with IHL rules, including the principle of non-refoulement . In general terms, this principle prohibits the transfer of persons from one authority to another in any manner whatsoever if there are substantial grounds for believing that the person would be in danger of suffering a violation of certain fundamental rights. Footnote 128 This is recognized, in particular, for torture or cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or persecution. Footnote 129 The principle of non-refoulement is found, with varying scopes, in IHL, IHRL and international refugee law. Footnote 130 The core of this principle is also part of customary international law. Footnote 131

Protected persons in the territory of a party to an international armed conflict

As protected persons, migrants, first and foremost, have the right to leave the affected territory at the outset of, or during, a conflict, unless their departure is contrary to the national interests of the State. Footnote 132 Departures may only take place if they are voluntary – which is important, as migrants may choose to stay – and can take place either to a protected person's own country or to other countries. Footnote 133 The exercise of the right to leave must be carried out in satisfactory conditions with regard to safety, hygiene, sanitation and food. Footnote 134 Departure decisions by the State, including negative ones, must be made in accordance with certain safeguards. Footnote 135 Secondly, applicable national law and international law will continue to govern the treatment of aliens in times of peace, except for special measures. Footnote 136 As a result, a party to the conflict may only deport migrants based on the legal grounds available in peacetime, subject to specific IHL provisions on the removal of protected persons. Footnote 137 This requires taking into account the interaction of IHL with other bodies of international law, including IHRL rules on the expulsion of aliens. Footnote 138 Thirdly, under customary IHL, civilians have a right to voluntarily return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist. Footnote 139 This right does not, however, extend to lawfully expelled migrants; it only covers those who have been displaced, either voluntarily or involuntarily. Footnote 140

Beyond these rules, Article 45 of GC IV provides important restrictions on the right of a party to the conflict to transfer protected migrants. The limitations prescribed are absolute and do not allow for derogations or exceptions. Footnote 141 As noted in the Commentary, however, limitations must not interfere with the right of protected persons under Article 35 of GC IV to leave the territory at the outbreak of, or during, a conflict. Footnote 142 An important first limitation on the right to transfer protected persons is the principle of non-refoulement , which finds expression, even prior to the 1951 Refugee Convention, in Article 45 of GC IV. Footnote 143 In the ICRC's view, the scope of the principle of non-refoulement extends to any type of transfer, such as expulsion, deportation, extradition or return, regardless of its formal designation. Footnote 144 According to Article 45(4) of GC IV, a protected person in the territory of a party to the conflict shall in no circumstances “be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs”. Footnote 145 Although the term “persecution” is not defined in IHL, it refers, at a minimum, to serious violations of human rights (right to life, freedom and security) on such grounds as ethnicity, nationality, religion or political opinion. Footnote 146

A second restriction on the transfer of aliens in the territory of a party to the conflict, which is broader than other expressions of the principle of non-refoulement , is found in Article 45(3). Footnote 147 It prohibits transfers not only in the case of specific grounds normally invoked under IHRL and international refugee law, such as torture or persecution, but also in all cases where the receiving State cannot or will not treat aliens in accordance with the protections granted by GC IV. Footnote 148 Logically, given that the receiving State is itself required to comply with Article 45 of GC IV, this means that an onward transfer to a third State in violation of GC IV would also be prohibited (secondary refoulement ). Footnote 149 Thus, a transfer may not take place unless the transferring power is satisfied that the receiving power is willing and able to apply GC IV, including the non-refoulement obligation. If protected persons are transferred, the transferring State continues to be responsible and must “take effective measures to correct the situation” or “request the return of the protected persons” if the receiving State does not fulfil its responsibilities under the Conventions. Footnote 150 The transferring State also has a duty to ensure respect by the receiving State based on common Article 1, which in turn bolsters the obligations of the latter. Footnote 151 Grounded on this, if the transferring State believes that the receiving State is not willing or able to fulfil its responsibilities under the Conventions, it must not transfer individuals as this may encourage, aid or assist in IHL violations. Footnote 152 Furthermore, it “must do everything reasonably in its power to prevent and bring such violations to an end” by monitoring the fate of transferred individuals and, if necessary, exercising its influence to ensure that the receiving State respects the Conventions. Footnote 153

Protected persons in occupied territory

In situations of occupation, Article 48 of GC IV provides that “protected persons who are not nationals of the Power whose territory is occupied” have the right to leave the territory subject to the conditions of Article 35 of GC IV. The wording of this article explicitly refers to the right to leave the territory, including for protected refugees, and it is not restricted to repatriation. Footnote 154 Although the principle of non-refoulement is not expressly found in treaty law applicable to occupied territory, the IHRL and international refugee law principle will protect migrants, as relevant, in situations of armed conflict. Moreover, Article 49 of GC IV prohibits individual and mass forcible transfers and deportations of protected persons, regardless of the destination or purpose of the transfer, except where the security of the civilians involved or imperative military reasons require evacuations. Footnote 155 This prohibition suffers no exception and applies broadly to the forced displacement of protected migrants, both within or outside the bounds of national territory. It establishes a clear and absolute prohibition, although it only covers “forced” transfers and deportations so that protected persons who wish to leave are not barred from doing so. Footnote 156

Even where a permissible evacuation takes place on the basis of Article 49(2), it cannot result in displacement outside the bounds of the occupied territory “except where for material reasons it is impossible to avoid”. Footnote 157 Evacuations – whether permissible or not – must in any case be temporary and meet “to the greatest practicable extent” certain requirements on the treatment of displaced persons, including avoiding the separation of families. Footnote 158 Whether persons are forcibly transferred or deported in violation of GC IV or are lawfully evacuated, they must be transferred back to their homes as soon as hostilities in the area in question have ceased. Footnote 159 As evacuations may take place to third States in exceptional circumstances, the right to return applies both to displacement inside and outside the occupied territory (whether in the same country or across a border). Footnote 160 Finally, under Article 70(2) of GC IV, refugees who find themselves in a territory occupied by their country of origin are entitled to special protection against deportation from the occupied territory, except on certain limited grounds. Footnote 161

Non-international armed conflicts

Common Article 3 and AP II do not contain an explicit prohibition of non-refoulement . Footnote 162 The ICRC's position is that by virtue of the “categorical prohibitions” contained in common Article 3, which bind all parties to the conflict, the “transfer of persons to places or authorities where there are substantial grounds for believing that they will be in danger of being subjected to violence to life and person, such as murder or torture and other forms of ill-treatment”, would also be prohibited. Footnote 163 The finding that IHL prohibits refoulement in non-international armed conflicts is based on and supported by arguments under IHL and is further reinforced by relevant IHRL. Footnote 164 Firstly, similar to the rationale underlying the GC IV non-refoulement provision, the law applicable in non-international armed conflicts “should not be circumvented by transferring persons where they would be in danger of being subjected to violations of common Article 3 upon transfer”. Footnote 165 This is also the logic motivating the reasoning of the UN Human Rights Committee and international jurisprudence on the principle of non-refoulement . Secondly, Article 5(4) of AP II requires authorities that “release persons deprived of their liberty to take necessary measures to ensure their safety”. Arguably, this should also be required for transfers, which entail that the transferring authority hand over control over individuals. Footnote 166 Thirdly, although not explicitly stated, it is considered that returns based on Article 118 of GC III must not result in refoulement and that this logic should also apply to non-international armed conflicts. Footnote 167 Finally, the non-refoulement obligation is further bolstered by the duty of States to respect and ensure respect for IHL as enshrined in common Article 1. Footnote 168

The transfer of persons should not circumvent IHL applicable in non-international armed conflicts. Footnote 169 This would arguably cover the fundamental guarantees contained in common Article 3, including humane treatment and the prohibitions against hostage-taking and against passing sentences without affording all judicial guarantees. Footnote 170 The latter, however, would likely be restricted to trials which are manifestly unfair, taking into account narrower interpretations by human rights bodies. Footnote 171 Under IHL, all parties to the conflict, including international organizations and non-State organized armed groups, must abide by the principle of non-refoulement . Footnote 172 This is relevant when comparing the protection of migrants under other bodies of international law. Furthermore, it is the ICRC's view that the principle of non-refoulement applies, irrespective of the crossing of a border, if control over a person is transferred from one authority to another. Footnote 173

Another relevant rule for the movement of migrants is the prohibition in Article 17(1) of AP II against parties ordering the displacement of the civilian population “for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand”. Footnote 174 This is also a rule of customary international law. Footnote 175 As in international armed conflicts, this rule is absolute, though it only covers “forced” displacement – whether within the country or across international borders – and should not be construed as preventing voluntary movement. Footnote 176 If displacement takes place, “all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition” and that members of the same family are not separated. Footnote 177 As noted in the commentaries to the Additional Protocols and to customary IHL Rule 132, these conditions should be applied to the displacement itself. Footnote 178 Civilians also have the “right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist”, even if the displacement took place voluntarily. Footnote 179 Finally, “all appropriate steps shall be taken to facilitate the reunion of families temporarily separated”. Footnote 180

Final considerations

As seen in this section, IHL contains relevant rules for the movement of migrants in international and non-international armed conflicts. When persons are displaced, whether voluntarily or involuntarily, in connection with an armed conflict, some rules will continue to apply beyond the end of the armed conflict until they have been able to return in safety to their homes or places of habitual residence, if they wish to do so. Footnote 181 However, it is possible that the right of return of migrants that have been displaced from a country that is not their own may be limited, particularly if their status within that country was irregular. Footnote 182 In any case, States continue to have obligations towards migrants based on domestic law as well as under IHRL and international refugee law, as applicable. Footnote 183 Importantly, IHL, IHRL and international refugee law provide complementary protection, including against refoulement , to migrants in situations of armed conflict. An important question when considering the protection of migrants under IHL – including the rules regulating their movement – is how this body of law interacts with other relevant branches of international law. Footnote 184 For instance, how do the rights to freedom of movement Footnote 185 and to leave any country, including one's own, Footnote 186 as well as the rules concerning the expulsion of aliens Footnote 187 in IHRL, interact with IHL? Linked with this, how does international refugee law interact with IHL and IHRL? Footnote 188 Notably, how do the rules relating to the return of refugees to their country of origin at the end of hostilities interact? Footnote 189

Rules on family unity and missing and dead migrants

In situations of armed conflict, many migrants may go missing or die, including because of separation from their families or detention. This is often a direct consequence of IHL violations. In the case of migrants, communication between family members – often living in different countries – may be especially challenging as they may speak different languages from that of the country they are in and information must be transmitted across borders and through the authorities of different States. This also complicates the collection of proper data for the identification of dead migrants. A further difficulty is that migrants may not wish to re-establish contact with their families out of fear of deportation or reprisals against their families in countries of origin. Finally, if the necessary measures are not taken to identify human remains and to transmit relevant information to families, dead migrants are likely to be reported missing.

Despite practical challenges, IHL provides important rules concerning respect for family life, the maintenance or re-establishment of family links, the clarification of the fate and whereabouts of missing persons, and the search for, collection and identification of the dead that are pertinent for migrants. Footnote 190 These primarily aim to prevent persons from going missing and to clarify their fate and whereabouts when they do, in order to provide their family members with any available information on their fate. Footnote 191 However, the obligation to account for missing and dead persons is one of means and not of results. Parties to the conflict must use their best efforts to inform families of the fate of their relatives, and when information is available they must provide it to the families. Footnote 192 The rules of IHL relating to the re-establishment of family links, the reunion of families and accounting for the dead and the missing may continue to apply beyond the end of an armed conflict. If a person went missing in connection with an armed conflict, these rules remain applicable until the fulfilment of the parties’ obligations. Footnote 193 Parties continue to be bound by their duty to take all feasible measures to account for persons reported missing and to provide family members with any information they have on their fate. This is also the case for obligations related to dead persons, notably on search, collection and accounting. Furthermore, parties remain bound by their duty to facilitate the tracing efforts of members of dispersed families so that they can restore family links and, if possible, reunite these families.

International armed conflicts

In international armed conflicts, several IHL rules seek to prevent persons from going missing, including by recording their information when they are detained. Footnote 194 Parties to the conflict also have an obligation to enable all persons on their territory, or in a territory occupied by them, to give news of a strictly personal nature to members of their families, wherever they may be, and to receive news from them. Footnote 195 This obligation applies irrespective of the location of families. Footnote 196 If migrants are dispersed in connection with an armed conflict, parties must facilitate enquiries made by their relatives with the aim of restoring family links and, if possible, reunification. Footnote 197 Importantly, Article 74 of AP I develops Article 26 of GC IV, including by imposing the obligation on parties to the conflict to facilitate the reunion of dispersed families in “every possible way” also on third States party to the Protocol. Footnote 198 According to the Commentary, “[t]his is quite logical, since it often happens during armed conflict that nationals of a country involved in a conflict seek refuge or are taken to neutral countries”. Footnote 199 Even if AP I does not apply, it could be argued that third States may have obligations related to facilitating family reunification stemming from their duty to ensure respect for IHL under common Article 1. Footnote 200 This would not, however, necessarily result in an obligation for third States to grant an entry permit. Footnote 201 This is relevant as the families of migrants are often not in the territory of a State party to the conflict.

When persons are reported missing, parties must also take all feasible measures to account for and transmit information on them. Footnote 202 Building on GC IV, Article 33 of AP I and customary international law extend the obligation to search for missing persons to all other persons not covered by the Conventions, including nationals of States not party to the conflict and persons whose nationality is contested. Footnote 203 Although AP I does not extend to the nationals of a party to the conflict, records should be kept in line with the general principle in Article 32 that all activities “shall be prompted mainly by the right of families to know the fate of their relatives”. Footnote 204 When considering the transmission of information to countries of origin, situations where migrants do not wish to restore family links Footnote 205 or where this could be prejudicial to them or their relatives Footnote 206 must be taken into account. As noted in the Commentary to Article 32 of AP I, the right of families to know the fate of their relatives should be balanced with other concerns – for instance, if a prisoner does not wish to communicate with his family. Footnote 207 For protected persons under GC IV, the obligation of the National Information Bureau to transmit information is waived if detrimental to the person concerned or to his or her relatives. Footnote 208 Parties to the conflict also have an obligation to search for, recover and identify the dead, including migrants, to ensure that their human remains are appropriately handled and to notify families. Footnote 209 AP I extends the personal scope of the obligations in GC IV to respect remains and to respect, maintain and mark graves to persons who died for reasons related to occupation, persons who died in detention as a result of occupation or hostilities, or persons who are not nationals of the country in which they died as a result of hostilities. Footnote 210 It also covers other unregulated issues, including the protection and return of human remains. Footnote 211

In non-international armed conflicts, there are a number of rules that are relevant for preventing persons from going missing or becoming separated, as well as for re-establishing family links and reuniting families. Footnote 212 Underpinning all obligations is the right to respect for family life, which is recognized as a rule of customary IHL. Footnote 213 Among the pertinent rules, parties must take all appropriate steps to facilitate the reunion of families temporarily separated, including through the identification of children, the establishment of information bureaux and the use of the Central Tracing Agency. Footnote 214 In addition, there are rules relating to the exchange of contact between family members. Footnote 215 Parties must also take all feasible steps to account for persons reported missing and to inform families of their fate. Footnote 216 They must search for and collect the dead, record all available information prior to disposal of bodies with a view to their identification, and ensure that human remains are appropriately handled. Footnote 217 The essence of this rule is that authorities inform families, as far as possible, about the fate of their relatives and, as noted in the Commentary, on the location of their graves when appropriate. Footnote 218

One of the primary aims of IHL when it comes to the protection of migrants in situations of armed conflict is to prevent the forced movement of persons either internally or externally. This has been one of the main focuses of existing literature on the protection of refugees (and internally displaced persons) under IHL. This article sought to explore the many rules of IHL that protect migrants not only from displacement, but more generally when they find themselves in situations of armed conflict – whether because they live in or are transiting through countries experiencing armed conflict. These rules primarily seek to protect migrants from the effects of hostilities and to ensure that they are treated humanely when in enemy hands. In the first place, IHL protects migrants under the general rules for the civilian population. In addition, they are entitled to special protection in international armed conflicts as protected persons. As refugees, they enjoy special protection under Articles 44 and 70(2) of GC IV. As such, IHL includes important rules for the protection of migrants finding themselves in situations of armed conflict. However, as migrants also continue to enjoy protection under domestic law and under other applicable bodies of international law in international and non-international armed conflicts, the interaction of IHL with other international obligations should be further considered. In particular, the complementary protection provided by IHRL and international refugee law to migrants in situations of armed conflicts and the interplay of these rules with IHL would merit further research. As mentioned above, for instance, it would be important to reflect on how the right to freedom of movement in IHRL and the rules relating to the return of refugees in international refugee law interact with IHL rules relating to the movement of persons.

Although briefly addressed, the potential obligations of third States, either during or after an armed conflict, based on common Article 1 should also be further considered to gain a more comprehensive understanding of the protection of migrants under IHL. For instance, to what extent, if any, is there a duty for third States to endeavour to ensure that parties to an armed conflict comply with their obligations to re-establish family links for migrants displaced in relation to the conflict or to account for missing and dead migrants? If a party to an armed conflict is attempting to restore family links and requires the assistance of a third State to do so, to what extent can the refusal of the latter be seen as contributing to the commission of a violation of IHL? Finally, as part of their duty to prevent violations of IHL, should third States reach out to parties to an armed conflict to try to facilitate the carrying out of their obligations? Although this article does not address this issue in detail, determining the existence and scope of the potential obligations of third States remains important, for instance to account for missing and dead migrants during or at the end of an armed conflict or to facilitate the voluntary return of migrants, as appropriate.

1 Office of the United Nations High Commissioner for Refugees (UNHCR) , Global Trends: Forced Displacement in 2015 , Geneva , 20 June 2016 Google Scholar , pp. 3, 16–18, available at: s3.amazonaws.com/unhcrsharedmedia/2016/2016-06-20-global-trends/2016-06-14-Global-Trends-2015.pdf (all internet references were accessed in June 2017).

2 The definition used in this article for the term “migrants” will be explained below in the section “Who Are ‘Migrants’, and How Does IHL Address Their Protection?”.

3 United Nations (UN), Department of Economic and Social Affairs, Population Division, International Migration Report 2015 , ST/ESA/SER.A/384, New York, 2016, available at www.un.org/en/development/desa/population/migration/publications/migrationreport/docs/MigrationReport2015.pdf .

4 For further discussion on the protection and assistance needs of migrants caught in situations of armed conflict, see Stéphanie Le Bihan, “Addressing the Protection and Assistance Needs of Migrants: The ICRC Approach to Migration”, in this issue of the Review .

5 International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, 8 July 1996, ICJ Reports 1996 , para. 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, 9 July 2004, ICJ Reports 2004 , para. 106; ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , Judgment, 19 December 2005, ICJ Reports 2005 , para. 216. See also Henckaerts , Jean-Marie and Doswald-Beck , Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules , Cambridge University Press , Cambridge , 2005 (ICRC Customary Law Study), pp. 299 – 305 CrossRef Google Scholar ; UN Office of the High Commissioner for Human Rights (OHCHR) , International Legal Protection of Human Rights in Armed Conflict , New York and Geneva , 2011 Google Scholar , available at: www.ohchr.org/Documents/Publications/HR_in_armed_conflict.pdf .

6 For the meaning of international and non-international armed conflicts under IHL, see Articles 2 and 3 common to the four Geneva Conventions; Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 1(4); Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 1. See also ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field , 2nd ed., 2016 (ICRC Commentary on GC I), commentary on common Arts 2 and 3, available at: ihl-databases.icrc.org/ihl/full/GCI-commentary ; ICRC, “How Is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?”, Opinion Paper, March 2008, available at: www.icrc.org/eng/resources/documents/article/other/armed-conflict-article-170308.htm ; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts , 31IC/11/5.1.2, October 2011 (ICRC Challenges Report 2011), pp. 7–11, available at: www.icrc.org/eng/resources/documents/report/31-international-conference-ihl-challenges-report-2011-10-31.htm ; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts , 32IC/15/11, October 2015 (ICRC Challenges Report 2015), pp. 7–16, available at: www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-armed-conflicts .

7 Petrig , Anna , “ Search for Missing Persons ”, in Clapham , Andrew , Gaeta , Paola and Sassòli , Marco (eds), The 1949 Geneva Conventions: A Commentary , 1st ed. , Oxford University Press , Oxford , 2015 , p. 269 Google Scholar ; David , Eric , Principes de droit des conflits armés , 5th ed. , Bruylant, Brussels , 2012 , p. 262 Google Scholar ; Haroff-Tavel , Marion , “ Do Wars Ever End? The Work of the International Committee of the Red Cross When the Guns Fall Silent ”, International Review of the Red Cross , Vol. 85 , No. 851 , 2003 , pp. 476 – 477 Google Scholar .

8 For instance, parties will remain bound by obligations relating to the re-establishment of family links if migrants fled to another country – or internally – for reasons related to the armed conflict, as well as by their obligations related to accounting for the dead and the missing.

9 For an analysis of the interplay between IHL, IHRL and international refugee law, see, for instance, Emanuela-Chiara Gillard, “Humanitarian Law, Human Rights and Refugee Law – Three Pillars”, statement at the International Association of Refugee Law Judges world conference, Stockholm, 21–23 April 2005, available at: www.icrc.org/eng/resources/documents/statement/6t7g86.htm ; Jaquemet , Stephane , “ The Cross-Fertilization of International Humanitarian Law and International Refugee Law ”, International Review of the Red Cross , Vol. 83 , No. 843 , 2001 Google Scholar ; Chetail , Vincent , “ Armed Conflict and Forced Migration: A Systematic Approach to International Humanitarian Law, Refugee Law and International Human Rights Law ”, in Clapham , Andrew and Gaeta , Paola (eds), The Oxford Handbook of International Law in Armed Conflict , Oxford University Press , Oxford , 2014 Google Scholar ; Cantor , David James , “ Laws of Unintended Consequence? Nationality, Allegiance and the Removal of Refugees during Wartime ”, in Cantor , David James and Durieux , Jean-François (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law , Brill Nijhoff , Leiden , 2014 Google Scholar .

10 The term “migrant worker”, for instance, is defined in Article 2(1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, UN Doc. A/RES/45/158, 18 December 1990.

11 OHCHR , Recommended Principles and Guidelines on Human Rights at International Borders , Geneva , 2014 Google Scholar , Ch. I, para. 10, available at: www.ohchr.org/Documents/Issues/Migration/OHCHR_Recommended_Principles_Guidelines.pdf . The International Organization for Migration (IOM) proposes a similar, albeit more detailed, definition: see IOM, “Glossary on Migration”, 2nd ed., in International Migration Law , Vol. 25, Geneva, 2011, pp. 61–62, available at: publications.iom.int/system/files/pdf/iml25_1.pdf . UNHCR, however, refers to refugees and migrants separately: see, for instance, UNHCR, UNHCR Viewpoint: “Refugee” or “Migrant” – Which Is Right? , July 2016, available at: www.unhcr.org/news/latest/2016/7/55df0e556/unhcr-viewpoint-refugee-migrant-right.html .

12 The Policy on Migration also recognizes that certain categories of persons, such as refugees and asylum-seekers, enjoy special protection under international and domestic law. See International Federation of Red Cross and Red Crescent Societies, “Policy on Migration”, November 2009, available at: www.ifrc.org/PageFiles/89395/Migration%20Policy_EN.pdf . For the reasons behind the use of this definition by the ICRC and its approach to the issue of migration, see S. Le Bihan, above note 4.

13 While the protection under IHL of migrants as a broad category of individuals has not been the subject of study, the question of whether and how refugees (and internally displaced persons) are protected has been widely discussed. See, notably, Cantor , David James and Durieux , Jean-François (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law , Brill Nijhoff , Leiden , 2014 Google Scholar ; Jacques , Mélanie , Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law , Cambridge University Press , Cambridge , 2012 , pp. 156 – 184 CrossRef Google Scholar ; Bugnion , François , “ Refugees, Internally Displaced Persons, and International Humanitarian Law ”, Fordham International Law Journal , Vol. 28 , No. 5 , 2004 Google Scholar ; S. Jaquemet, above note 9, pp. 651–673; Hulme , Karen , “ Armed Conflict and the Displaced ”, International Journal of Refugee Law , Vol. 17 , No. 1 , 2005 CrossRef Google Scholar ; Lavoyer , Jean-Philippe , “ Refugees and Internally Displaced Persons: International Humanitarian Law and the Role of the ICRC ”, International Review of the Red Cross , Vol. 26 , No. 305 , 1995 Google Scholar ; Krill , Françoise , “ ICRC's Action in Aid of Refugees ”, International Review of the Red Cross , Vol. 23 , No. 265 , 1988 Google Scholar ; Dinstein , Yoram , “ Refugees and the Law of Armed Conflict ”, Israel Yearbook on Human Rights , Vol. 12 , 1982 Google Scholar .

14 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Art. 4; AP I, Art. 73.

15 As will be seen, IHL contains specific protections for “refugees”, and the meaning of this term will be explained in the second part of this article. See GC IV, Arts 44, 70(2); AP I, Art. 73.

16 For more information on the protection of migrants considered combatants for the purposes of an international armed conflict in IHL, see the second part of this article.

17 See, notably, common Art. 3; Geneva Convention I, Art. 12; Geneva Convention II, Art. 12; Geneva Convention III (GC III), Art. 16; GC IV, Arts 13, 27(3); AP I, Arts 9(1), 69(1), 70(1), 75(1); AP II, Arts 2(1), 4(1), 18(2).

18 For an overview of the principle of non-discrimination in IHRL, see, notably, Nowak , Manfred (ed.), U.N. Covenant on Civil and Political Rights: CCPR Commentary , 2nd ed. , Kehl am Rhein , 2005 Google Scholar , commentary on Arts 2, 26; Moeckli , Daniel , “ Equality and Non-discrimination ”, in Moeckli , Daniel , Shah , Sangeeta and Sivakumaran , Sandesh (eds), International Human Rights Law , 2nd ed. , Oxford University Press , Oxford , 2013 CrossRef Google Scholar .

19 See, for instance, Universal Declaration of Human Rights, UN Doc. 217 A (III), 10 December 1948 (UDHR), Art. 7; International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (ICCPR), Art. 26; American Convention on Human Rights, 22 November 1969 (ACHR), Art. 24; African Charter on Human and Peoples’ Rights, CAB/LEG/67/3 rev. 5, 21 ILM 58, 27 June 1981 (ACHPR), Art. 3; Arab Charter on Human Rights, 15 September 1994, Art. 11; Charter of Fundamental Rights of the European Union, 2012/C 326/02, 26 October 2012, Arts 20–21. Certain IHRL provisions have an accessory character, notably ICCPR, Art. 2; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, ETS 5, 4 November 1950 (ECHR), Art. 14; ACHR, Art. 1; ACHPR, Art. 2; Arab Charter on Human Rights, Art. 3.

20 This must be considered against the backdrop of the Geneva Conventions, which are premised on the protection of different categories of persons depending on their status, including considerations of nationality. The Additional Protocols also provide for the possibility of making certain distinctions based on nationality: see, for example, AP I, Art. 78(1); AP II, Art. 17(2). See also Gabor Rona and Robert J. McGuire, “The Principle of Non-Discrimination”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 7, p. 195.

21 ICRC Commentary on GC I, above note 6, paras 574–575: common Article 3 “does not prohibit non-adverse distinctions, i.e. distinctions that are justified by the substantively different situations and needs of persons protected”. See also Pejic , Jelena , “ Non-discrimination and Armed Conflict ,” International Review of the Red Cross , Vol. 83 , No. 841 , 2001 , p. 186 Google Scholar .

22 See, for instance, GC IV, Arts 27(2)–(3), 68(4); AP I, Arts 76, 77–78; AP II, Arts 4(3), 6(4).

23 The criteria provided by the Geneva Conventions and the Additional Protocols under which adverse distinction is prohibited are not exhaustive, as can be seen from the wording of the relevant provisions and the commentaries to these provisions. See, for example, common Art. 3 (“or any other similar criteria”); GC IV, Arts 13 (“or on any other similar criteria”), 27 (“in particular”); AP I, Arts 9, 75 (“or on any other similar criteria”); AP II, Art. 2 (“or on any other similar criteria”).

24 Common Article 3 applies to persons taking no active part in the hostilities, Article 13 of GC IV to the whole of the populations of the countries in conflict, Article 27 of GC IV to protected persons in the territories of parties to the conflict and in occupied territories, Article 2 of AP II to all persons affected by an AP II armed conflict, and Article 4 of AP II to all persons who do not take a direct part or who have ceased to take part in hostilities whether or not their liberty has been restricted.

25 ICRC Customary Law Study, above note 5, Rule 88.

26 While Article 13 of GC IV explicitly lists nationality, this is not the case in common Article 3 or Article 27 of GC IV. Meanwhile, the Additional Protocols refer to “national origin”.

27 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 640–641, 643: the delegate of the ICRC noted that nationality was omitted “because internment or measures restricting personal liberty were applied to enemy aliens precisely on grounds of nationality”. However, others (representatives of Afghanistan, the Netherlands and Mexico) advocated for the inclusion of nationality as a prohibited criterion. The representative of Norway noted that “a form of words should be found forbidding all distinction based on nationality, except in cases covered by the present Convention or other treaties”. See also Pictet , Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War , ICRC , Geneva , 1958 Google Scholar (ICRC Commentary on GC IV), p. 206; G. Rona and R. J. McGuire, above note 20, p. 200.

28 In international armed conflicts, the notion of “protected persons” under IHL covers a special category of civilians which includes persons “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. See GC IV, Art. 4.

29 ICRC Commentary on GC I, above note 6, p. 200; ICRC Commentary on GC IV, above note 27, p. 40: “It will be seen that the idea of nationality has not been included in Article 27. That does not in any way mean that people of a given nationality may be treated in an arbitrary manner; everyone whatever his nationality is entitled to humane treatment.” See also Pictet , Jean (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. 1: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field , ICRC , Geneva , 1952 Google Scholar (1952 ICRC Commentary on GC I), p. 56; Pictet , Jean (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. 3: Geneva Convention relative to the Treatment of Prisoners of War , ICRC , Geneva , 1960 Google Scholar (ICRC Commentary on GC III), p. 41.

30 For an explanation of why it was not included, see ICRC Commentary on GC I, above note 6, paras 571–572.

31 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 94.

32 ICRC Commentary on GC I, above note 6, para. 572. See also 1952 ICRC Commentary on GC I, above note 29, p. 56; ICRC Commentary on GC III, above note 29, p. 41; ICRC Commentary on GC IV, above note 27, p. 40.

33 ICRC Commentary on GC I, above note 6, para. 572. See also 1952 ICRC Commentary on GC I, above note 29, p. 56; ICRC Commentary on GC III, above note 29, p. 41.

34 AP I, Arts 9, 75; AP II, Arts 2, 4. See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, with the collaboration of Eaton , Martin , New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 , 2nd ed. , Martinus Nijhoff , Leiden , 2013 , p. 722 Google Scholar : the criteria in Article 2 apply to other articles where the term “adverse distinction” is used.

35 M. Bothe, K. J. Partsch and W. A. Solf, above note 34, pp. 515–516, commenting on AP I, Art. 75.

36 M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 112.

37 According to Article 44 of GC IV, refugees are protected persons “who do not, in fact, enjoy the protection of any government”. Meanwhile, Article 70 of GC IV covers “[n]ationals of the occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State”. Finally, in Article 73 of AP I, refugees (or stateless persons) are “persons who, before the beginning of hostilities, were considered as stateless persons or refugees under the relevant international instruments accepted by the Parties concerned or under the national legislation of the State of refuge or State of residence”.

38 The conditions for combatant and prisoner of war (PoW) status are found in GC III, Article 4. Participants in a levée en masse fall within these conditions and are not considered civilians. See also AP I, Arts 43, 44; ICRC Customary Law Study, above note 5, Rule 3; ICRC, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law , Geneva, 2009 (ICRC Interpretative Guidance), pp. 21–26, 30–35.

39 AP I, Art. 50: “A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol”. ICRC Commentary on GC IV, above note 27, paras 1913–1917; ICRC Customary Law Study, above note 5, Rule 5; ICRC Interpretative Guidance, above note 38, pp. 20–21, 26–30, 36.

40 AP I, Arts 51(2), 51(4)–(5).

41 Ibid ., Art 54.

42 The fourth part of this article will examine other IHL rules relating more specifically to the movement of migrants.

43 Ibid ., Part IV, Section I, notably Arts 48, 51, 57, 58; ICRC Customary Law Study, above note 5, Ch. 1.

44 The application of the provisions conferring the relevant status, rights and protections of individuals once in enemy hands in international armed conflicts will be determined by their precise personal scope of application, notably whether a migrant is a “protected person” under Article 4 of GC IV. ICRC Commentary on GC IV, above note 27, p. 50.

45 This extends not only to protected persons but to all persons in a territory belonging to or occupied by a party to the conflict. See GC IV, Arts 4(3), 13; ICRC Commentary on GC IV, above note 27, p. 118; M. Bothe, K. J. Partsch and W. A. Solf, above note 34, pp. 495, 498.

46 Sandoz , Yves , Swinarski , Christophe and Zimmermann , Bruno (eds), Commentary on the Additional Protocols , ICRC , Geneva , 1987 Google Scholar (ICRC Commentary on APs), paras 1908–1909, 1913, 1917; ICRC Commentary on GC IV, above note 27, p. 46.

47 GC IV, Art. 13; ICRC Customary Law Study, above note 5, Rule 88.

48 These rules are not limited to protected persons; they also cover nationals of an adverse party in occupied or domestic territory as well as a party's nationals. However, the exact scope of application of each article in this section will need to be examined in order to determine if it is applicable to a party's own nationals. For further analysis of the scope of application of Part IV, Section III of AP I (Arts 72–79), see M. Bothe, K. J. Partsch and W. A. Solf, above note 34, pp. 495, 498–500.

49 GC IV, Arts 25–26; AP I, Art. 74; ICRC Customary Law Study, above note 5, Rule 105.

50 AP I, Arts 68–71, building on GC IV, Art. 23; ICRC Customary Law Study, above note 5, Rules 55, 56.

51 ICRC, “Q&A and Lexicon on Humanitarian Access”, June 2014, available at: www.icrc.org/eng/resources/documents/article/other/humanitarian-access-icrc-q-and-a-lexicon.htm ; ICRC Challenges Report 2015, above note 6, pp. 26–30.

52 AP I, Art. 75; ICRC Commentary on APs, above note 46, p. 850; ICRC Customary Law Study, above note 5, Section V, “Treatment of Civilians and Persons Hors de Combat”.

53 ICRC Customary Law Study, above note 5, Rules 87–105.

54 The protection of migrants once in enemy hands will depend on their status under Article 4 of GC III and Article 43 of AP I. For more on the protection of migrants as combatants or PoWs, see S. Jaquemet, above note 9, pp. 651–673; Y. Dinstein, above note 13, pp. 94–109; Hampson , Françoise J. , “ The Scope of the Obligation Not to Return Fighters under the Law of Armed Conflict ”, in Cantor , David James and Durieux , Jean-François (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law , Brill Nijhoff , Leiden , 2014 Google Scholar ; Ziegler , Reuven (Ruvi) , “ Non-Refoulement between ‘Common Article 1’ and ‘Common Article 3’” , in Cantor , David James and Durieux , Jean-François (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law , Brill Nijhoff , Leiden , 2014 Google Scholar .

55 GC III, Art. 4; AP I, Art. 43.

56 Persons not meeting the criteria for combatant privilege and PoW status under IHL, and who do not enjoy protection under GC III, are entitled to protection under GC IV if they fulfil the criteria of Article 4 of GC IV, subject to certain derogations. For a general overview of the protection of “unprivileged combatants”, see Dörmann , Knut , “ The Legal Situation of ‘Unlawful/Unprivileged Combatants’ ”, International Review of the Red Cross , Vol. 85 No. 849 , 2003 Google Scholar ; Laura M. Olson, “Status and Treatment of Those Who Do Not Fulfil the Conditions for Status as Prisoners of War”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 7, pp. 922–924.

57 This may be subject to certain derogations: see GC IV, Arts 4(1), 5. For the definition of “protected persons” in Article 4 of GC IV, see above note 28.

58 As will be seen in the sections below on stateless persons and refugees, where AP I is applicable, persons falling within the meaning of these terms will be considered protected persons under Article 4 of GC IV based on Article 73 of AP I.

59 GC IV, Arts 4(2), 4(4). Although nationals of a State that has not ratified GC IV are also excluded, the Geneva Conventions are universally ratified. See also ICRC Commentary on GC IV, above note 27, p. 47; ICRC Commentary on APs, above note 46, p. 848, paras 2947–2948.

60 However, see sections below on refugees regarding the effects of Article 73 of AP I as well as on the protection provided for refugees under Article 70(2) of GC IV.

61 ICRC Commentary on GC IV, above note 27, p. 46: the only provision in GC IV explicitly applying to the nationals of a State party to an international armed conflict is Article 70(2) of GC IV. Although individuals may be considered refugees under this article, they are not covered by Article 4 of GC IV (unless AP I applies and the criteria of Article 73 of this Protocol are met). See sections below on refugees.

62 M. Jacques, above note 13, pp. 163–164, 42–48, 160; Elizabeth Salmón, “Who Is a Protected Civilian?”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 7, pp. 1142–1145.

63 ICTY, The Prosecutor v. Duško Tadić , Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, paras 163–169.

64 Sassòli , Marco and Olson , Laura M. , “ The Judgment of the ICTY Appeals Chamber on the Merits in the Tadić Case ”, International Review of the Red Cross , Vol. 82 , No. 839 , 2000 , pp. 743 – 747 Google Scholar ; Quéguiner , Jean-François , “ Dix ans après la creation du Tribunal penal international pour l'ex-Yougoslavie: Évaluation de l'apport de sa jurisprudence au droit international humanitaire ”, International Review of the Red Cross , Vol. 85 , No. 850 , 2003 , pp. 302 – 303 Google Scholar .

65 GC IV, Art. 38; ICRC Commentary on GC IV, above note 27, p. 244.

66 GC IV, Art. 38.

67 See the section on “Rules Governing the Movement of Migrants”, below.

68 GC IV, Arts 27, 41–43. See also Art. 37.

69 See, notably, Ibid ., Art 49(5); ICRC Commentary on GC IV, above note 27, pp. 282–283.

70 ICRC Commentary on GC IV, above note 27, p. 207.

71 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, 187 CTS 227, 1 Bevans 631, The Hague, 18 October 1907 (entered into force 26 January 1910) (1907 Hague Regulations), Annex, Art. 43.

72 GC IV, Art. 78.

73 See the section on “Rules Governing the Movement of Migrants”, below.

74 ICRC Commentary on GC IV, above note 27, pp. 46, 47; M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 502.

75 According to Article 1(1), a stateless person is “a person who is not considered as a national by any State under the operation of its law”. Although this definition seems wide, its second paragraph excludes certain individuals. See Convention relating to the Status of Stateless Persons, 360 UNTS 117, 28 September 1954 (entered into force 6 June 1960).

76 AP I, Art. 73; see also ICRC Commentary on APs, above note 46, paras 2957–2958.

77 AP I, Art. 73; see also ICRC Commentary on APs, above note 46, paras 2974, 2976; M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 502.

78 ICRC Commentary on APs, above note 46, paras 2978–2979; M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 504.

79 ICRC Commentary on APs, above note 46, paras 2955, 2978–2980.

80 Ibid ., para. 2980.

81 This article provides specific protection to migrants considered “refugees”. See the section on “Specific Protection of Migrants as Refugees”, below.

82 ICRC Commentary on GC IV, above note 27, p. 47; ICRC Commentary on APs, above note 46, p. 848, paras 2947–2948. Refugees who are nationals of the occupying power are not considered protected persons. Despite not enjoying the wider protections of GC IV, they enjoy specific protection under Article 70(2) of GC IV. See the section on “Specific Protection of Migrants as Refugees”, below.

83 At the 1972 Conference of Government Experts that considered the draft protocols, UNHCR and the ICRC expressed the view that GC IV did not provide the necessary protection for all refugees and recommended that all refugees and stateless persons be considered protected persons for the purposes of GC IV. See ICRC, Report on the Work of the Conference: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Second Session (Geneva, 3 May–3 June 1972) , Geneva, 1972, Vol. 1, para. 3.125, and Vol. 2, p. 82.

84 ICRC Commentary on APs, above note 46, para. 2981; M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 505.

85 See the section on “Specific Protection of Migrants as Refugees”, below.

86 ICRC Commentary on APs, above note 46, paras 2952, 2959–2973. See also Convention relating to the Status of Refugees, 189 UNTS 137, 28 July 1951 (entered into force 22 April 1954); Cartagena Declaration on Refugees, 22 November 1984 (Cartagena Declaration). For further details on the different definitions of a “refugee” under international refugee law, see, for instance, Goodwin-Gill , Guy S. and McAdam , Jane , The Refugee in International Law , 3rd ed. , Oxford University Press , Oxford , 2007 , pp. 15 – 50 Google Scholar .

87 ICRC Commentary on APs, above note 46, paras 2952–2953.

88 Ibid ., para. 2969. The definition of a “refugee” within UNHCR's mandate is based on the UNHCR Statute, which contains a definition almost identical to that of the 1951 Refugee Convention and has throughout the years been extended by resolutions of the UN General Assembly, the Economic and Social Council and UNHCR's Executive Committee to include persons “outside their country of origin 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”. See UNHCR, Resettlement Handbook , July 2011, pp. 80–81, available at: www.unhcr.org/46f7c0ee2.pdf .

89 ICRC Commentary on APs, above note 46, para 2956.

90 M. Jacques, above note 13, p. 162.

91 GC IV, Art. 73; ICRC Commentary on APs, above note 46, para 2976. See the section on “Special Protection of Migrants as Protected Persons under GC IV”, above.

92 The explicit reference to Part III of GC IV in Article 73 of AP I is to ensure that each of the provisions of GC IV is “interpreted in the most favourable light for refugees” (e.g., refugees are protected by Article 4(2) of GC IV even if they are not enemy nationals). See ICRC Commentary on APs, above note 46, para. 2982.

93 M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 505; ICRC Commentary on APs, above note 46, para. 2985.

94 M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 505.

95 Stateless persons, as seen above, will always be considered protected persons, based on GC IV and/or AP I.

96 ICRC Commentary on APs, above note 46, pp. 847, 850, paras 2944, 2956.

97 ICRC Commentary on GC IV, above note 27, pp. 263–264. It is worth noting that the 1967 Protocol relating to the Status of Refugees contains a broader refugee definition than that contained in the 1951 Refugee Convention, which is that referred to in the Commentary (as the former instrument had not yet been adopted). However, the 1967 Protocol definition contains certain limitations and it is argued that the refugee definition for the purposes of GC IV should be considered to be broader than that contained in the Protocol. See Protocol relating to the Status of Refugees, 606 UNTS 267, 31 January 1967 (entered into force 4 October 1967), Art. 1.

98 ICRC Commentary on GC IV, above note 27, p. 264. See also ICRC Commentary on APs, above note 46, para. 2942. This criterion should not be confused with “absence of normal diplomatic relations” in Article 4 of GC IV; “it is only the rupturing of the presumed and enduring de facto relationship of allegiance between a State and its nationals that qualifies the person as a ‘refugee’”. D. J. Cantor, above note 9, pp. 357–358.

99 V. Chetail, above note 9, p. 707.

100 D. J. Cantor, above note 9, pp. 365–366.

101 ICRC Commentary on GC IV, above note 27, p. 264.

102 GC IV, Art. 44; ICRC Commentary on GC IV, above note 27, pp. 264–265; M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 503.

103 ICRC Commentary on GC IV, above note 27, p. 265.

104 See the section on “Special Protection of Migrants as Protected Persons under GC IV”, above.

105 See the section on “Protection of Migrants as Part of the Civilian Population”, above.

106 ICRC Commentary on GC IV, above note 27, p. 350. See also D. J. Cantor, above note 9, p. 365.

107 M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 504.

108 ICRC Commentary on GC IV, above note 27, pp. 350–352.

109 Ibid ., p. 351.

110 There are also rules of IHL related to means and methods of warfare that protect persons during the time when they are actively participating in hostilities. As noted in the Commentary to AP II, the Protocol covers all persons affected by an armed conflict, which includes persons who do not or no longer take part in hostilities as well as those “who must, within the meaning of the Protocol, conform to certain rules of conduct with respect to the adversary and the civilian population” See ICRC Commentary on APs, above note 46, para. 4485.

111 For an explanation of the notion of “direct” participation in hostilities in the Additional Protocols, which refers to the same concept as “active” participation in hostilities in common Article 3, see ICRC Interpretative Guidance, above note 38.

112 ICRC Commentary on GC I, above note 6, paras 521–522.

113 Common Art. 3(1).

114 ICRC Commentary on APs, above note 46, para. 4489.

115 Common Art. 3; AP II, Arts 2, 4; ICRC Commentary on GC I, above note 6, paras 519, 527, 528; ICRC Customary Law Study, above note 5, Rule 87.

116 ICRC Commentary on APs, above note 46, para. 4489.

117 AP II, Arts 4–5.

118 ICRC Customary Law Study, above note 5, Rules 87–105.

119 Although AP II has a narrower scope of application than common Article 3 and uses different terms, both instruments share the same generic categorization of persons. See ICRC Interpretive Guidance, above note 38, p. 29; see also AP II, Arts 1(1), 13(1), 13(3).

120 ICRC Challenges Report 2011, above note 6, p. 43; ICRC Interpretive Guidance, above note 38, p. 27. See also ICRC Commentary on GC IV, above note 27, p. 40: “Article 3 [on the treatment of persons in enemy hands] has an extremely wide field of application and covers members of the armed forces as well as persons who do not take part in the hostilities. In this instance, however, the Article naturally applies first and foremost to civilians – that is to people who do not bear arms”.

121 ICRC Commentary on GC I, above note 6, paras 530, 532–533; ICRC Commentary on APs, above note 46, para. 4462.

122 ICRC Interpretive Guidance, above note 38, pp. 27–36; ICRC Challenges Report 2011, above note 6, p. 43; ICRC Commentary on GC I, above note 6, para. 534.

123 AP II, Art. 13(1), 13(3); ICRC Interpretive Guidance, above note 38, p. 27.

124 AP II, Arts 13(2), 14.

125 AP II, Art. 17. See the section on “Rules Governing the Movement of Migrants”, below.

126 AP II, Art. 18; ICRC Customary Law Study, above note 5, Rule 55. For further details on the requirement of consent, see ICRC Commentary on GC I, above note 6, paras 830–831.

127 ICRC Customary Law Study, above note 5; see, in particular, Section I (Rules 11–24) and Section III (Rules 53, 55 and 56).

128 Laurent Gisel, “The Principle of Non-Refoulement in Relation to Transfers”, in Detention in Armed Conflicts , Proceedings of the 15th Bruges Colloquium, 16–17 October 2014, College of Europe and ICRC, Collegium , No. 45, Autumn 2015, p. 116. See also ICRC, “Note on Migration and the Principle of Non-Refoulement ”, in this issue of the Review .

129 L. Gisel, above note 128, pp. 116.

130 ICRC Commentary on GC I, above note 6, para. 709 and references in fn. 635.

131 ICRC Commentary on GC I, above note 6, para. 709 and references in fn. 636.

132 GC IV, Art. 35(1).

133 ICRC Commentary on GC IV, above note 27, p. 235.

134 GC IV, Art. 36; ICRC Customary Law Study, above note 5, Rule 131. See also ICRC Commentary on GC IV, above note 27, p. 266: “expulsion, if it does take place, must be carried out under humane conditions, the persons concerned being treated with due respect and without brutality”.

135 GC IV, Art. 35(1)–(3). See ICRC Commentary on GC IV, above note 27, p. 238: for instance, the protecting power must be informed of a negative decision, except if the individual does not want their home country to know.

136 GC IV, Art. 38.

137 David James Cantor, “Forced Displacement, the Law of International Armed Conflict and State Authority”, 19 July 2011, p. 19, available at: ssrn.com/abstract=2297405 ; Henckaerts , Jean-Marie , Mass Expulsion in Modern International Law and Practice , Martinus Nijhoff , The Hague , 1995 , pp. 135 – 142 Google Scholar . See also ICRC Commentary on GC IV, above note 27, p. 266: deportation of aliens on an individual basis may take place when State security demands such action. “However, practice and theory both make this right a limited one: the mass deportation, at the beginning of a war, of all the foreigners in the territory of a belligerent cannot, for instance, be permitted. … Persons threatened with deportation must be able to present their defence without any difficulty being placed in their way and must be granted a reasonable time limit before the deportation order is carried out, if it is confirmed; in such cases the protecting power must be notified.”

138 J.-M. Henckaerts, above note 137, pp. 8–49, 137–138.

139 ICRC Customary Law Study, above note 5, Rule 132. In treaty law, Article 49(2) of GC IV for protected persons in occupied territory provides that persons who have been evacuated must be transferred back to their homes as soon as hostilities in the area in question have ceased.

140 Ibid ., Rule 132.

141 ICRC Commentary on GC IV, above note 27, pp. 266, 269. The principle of non-refoulement in IHRL is equally absolute. For the exceptions in international refugee law, which need to be narrowly interpreted, see 1951 Refugee Convention, Art. 33(2); Zimmermann , Andreas and Wenholz , Philipp , “ Article 33(2) ”, in Zimmermann , Andreas (ed.), The 1951 Convention on the Status of Refugees and its 1967 Protocol: A Commentary , Oxford University Press , Oxford , 2011 CrossRef Google Scholar , para. 2.

142 ICRC Commentary on GC IV, above note 27, p. 267.

143 For a more detailed analysis of the principle of non-refoulement , see Droege , Cordula , “ Transfers of Detainees: Legal Framework, Non-Refoulement and Contemporary Challenges ”, International Review of the Red Cross , Vol. 90 , No. 871 , 2008 CrossRef Google Scholar ; Lauterpacht , Elihu and Bethlehem , Daniel , “ The Scope and Content of the Principle of Non-Refoulement : Opinion ”, in Feller , Erika , Türk , Volker and Nicholson , Frances (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection , Cambridge University Press , Cambridge , 2003 Google Scholar ; Gillard , Emanuela-Chiara , “ There's No Place Like Home: States’ Obligations in Relation to Transfers of Persons ”, International Review of the Red Cross , Vol. 90 , No. 871 , 2008 Google Scholar .

144 ICRC, above note 128, p. 2, fn. 1.

145 GC IV, Art. 45(4).

146 1951 Refugee Convention, Art. 1; UNHCR Handbook on Procedures and Criteria for determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees , HCR/IP/4/Eng/REV.1, re-edited, Geneva, January 1992, paras 51–53. See also E.-C. Gillard, above note 143, pp. 723–724 and 727.

147 GC IV, Art. 45(3); see also GC III, Art. 12 for prisoners of war.

148 ICRC Commentary on GC IV, above note 27, pp. 268–269; C. Droege, above note 143, p. 675.

149 Vincent Chetail, “The Transfer and Deportation of Civilians”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 7, pp. 1199–1200.

150 C. Droege, above note 143, p. 698.

151 ICRC , Strengthening International Humanitarian Law Protecting Persons Deprived of Their Liberty: Synthesis Report from Regional Consultation of Government Experts , Geneva , November 2013 , p. 24 Google Scholar (some experts viewed transfer obligations “as part of a State's obligations under common Article 1 to take appropriate measures to ensure that other States respect IHL”). See also C. Droege, above note 143, p. 699. For a more general view of the obligations under common Article 1, see Dörmann , Knut and Serralvo , Jose , “ Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations ”, International Review of the Red Cross , Vol. 96 , No. 895 –896, 2014 CrossRef Google Scholar .

152 ICRC Commentary on GC I, above note 6, para. 154.

153 Ibid ., paras 154, 168.

154 GC IV, Art. 35; see also ICRC Commentary on APs, above note 46, commentary on AP I, Art. 73, para. 2982, which further confirms this.

155 GC IV, Art. 49; ICRC Customary Law Study, above note 5, Rule 129(A) and commentary. Concerning the implicit prohibition on deportations in the 1907 Hague Regulations, see J.-M. Henckaerts, above note 137, pp. 151–152. For more detailed analyses of the protection provided by IHL against forced displacement, see, for example, V. Chetail, above note 149, pp. 1185–1214; M. Jacques, above note 13, pp. 19–37, 49–71, 177–208; Willms , Jan , “ Without Order, Anything Goes? The Prohibition of Forced Displacement in Non-International Armed Conflict ”, International Review of the Red Cross , Vol. 91 , No. 875 , 2009 CrossRef Google Scholar ; K. Hulme, above note 13, pp. 91–116; D. J. Cantor, above note 137, pp. 1–23; Gillard , Emanuela-Chiara , “ The Role of International Humanitarian Law in the Protection of Internally Displaced Persons ”, Refugee Law Quarterly , Vol. 24 , No. 3 , 2005 Google Scholar ; J.-M. Henckaerts, above note 137, pp. 143–178.

156 ICRC Commentary on GC IV, above note 27, p. 279. See also V. Chetail, above note 149, p. 1190; J.-M. Henckaerts, above note 137, p. 145.

157 GC IV, Art. 49(2).

158 Ibid ., Art. 49(2)–(3); ICRC Customary Law Study, above note 5, Rule 131; ICRC Commentary on GC IV, above note 27, pp. 280, 281. See also M. Jacques, above note 13, pp. 33–34.

159 GC IV, Art. 49(2); ICRC Customary Law Study, above note 5, Rule 132.

160 E.-C. Gillard, above note 155, p. 42; ICRC Customary Law Study, above note 5, Rule 132; ICRC Commentary on GC IV, above note 27, p. 281.

161 The exception covers refugees who committed offences after the outbreak of hostilities. It also covers those who committed offences under common law before the outbreak of hostilities which would have justified extradition in time of peace according to the law of the occupied State. See GC IV, Art. 70(2); see also the section on “Special Protection of Migrants as Refugees”, above.

162 As mentioned previously, the continued applicability of the principle of non-refoulement under IHRL and/or international refugee law as well as customary international law would need to be considered.

163 ICRC Commentary on GC I, above note 6, para 710. For another view, see F. J. Hampson, above note 54, p. 385.

164 ICRC Commentary on GC I, above note 6, paras 710–712.

165 L. Gisel, above note 128, p. 118; ICRC Commentary on GC I, above note 6, para. 710.

166 L. Gisel, above note 128, p. 119.

168 ICRC, above note 151, p. 24. For an analysis of the obligation of non-belligerent States under common Article 1 relating to the transfer of detainees to States parties to a non-international armed conflict, see R. Ziegler, above note 54, pp. 386–408.

169 ICRC Commentary on GC I, above note 6, para. 710.

170 Ibid ., para. 710.

171 Ibid ., para. 710 and case law references.

172 Ibid ., para. 713.

173 Ibid ., para. 713.

174 For further detail, see references in above note 155 on the prohibition of forced displacement.

175 ICRC Customary Law Study, above note 5, Rule 129(B).

176 ICRC Commentary on APs, above note 46, para. 4851. See also M. Jacques, above note 13, p. 64.

177 AP II, Art. 17(1); ICRC Customary Law Study, above note 5, Rule 132.

178 ICRC Commentary on APs, above note 46, para. 4856; ICRC Customary Law Study, above note 5, Rule 131.

179 ICRC Customary Law Study, above note 5, Rule 132.

180 AP II, Art. 4(3)(b); ICRC Customary Law Study, above note 5, commentary on Rule 132. See also the section on “Rules on Family Unity and Missing and Dead Migrants”, below.

181 See, notably, ICRC Customary Law Study, above note 5, Rule 132.

182 The rules of IHRL (and those found in domestic law) relating to the right to return to one's own country, for instance, will need to be considered.

183 See above note 5.

184 For a more detailed analysis of the interplay between these bodies of law in relation to forced migration, see V. Chetail, above note 9, pp. 701–734. Specifically on the interplay concerning the principle of non-refoulement , see C. Droege, above note 143, p. 676 and references.

185 ICCPR, Art. 12(1); Arab Charter on Human Rights, Art. 26(1); ACHR, Art. 22(1); ECHR, Art. 2(1); ACHPR, Art. 12(1).

186 UDHR, Art. 13; ICCPR, Art. 12; ACHPR, Art. 12(2); Arab Charter on Human Rights, Arts 4(2), 27.

187 ACHR, Art. 22(9); Arab Charter on Human Rights, Art. 26(2); ACHPR, Art. 12(5); Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms Other than Those Already Included in the Convention and in the First Protocol Thereto, 16 September 1963, ETS 46 (ECHR Protocol 4), Art. 4; Human Rights Committee, General Comment 15/27 of 22 July 1986, para. 10 (on the implicit prohibition in Article 13 of the ICCPR); Committee on the Elimination of Racial Discrimination, General Recommendation No. 30, 1 October 2004, para. 26; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, A/RES/45/158, 18 December 1990, Art. 22(1).

188 See, for instance, 1951 Refugee Convention, Article 26, on freedom of movement, and Article 28, under which States parties do not have to deliver travel documents to refugees wishing to leave their asylum State when “compelling reasons of national security or public order otherwise require”. In addition, Article 32(1) of the Refugee Convention concerns the expulsion of refugees lawfully in the territory of a State, which is only permissible on grounds of national security or public order. See also the exceptions to non-refoulement in Article 33(2) of the 1951 Refugee Convention.

189 See, notably, GC IV, Art. 134; ICRC Customary Law Study, above note 5, Rule 128; UDHR, Art. 13; ICCPR, Art. 12(4); ECHR Protocol 4, Art. 3(2); ACHR, Art. 22(5); Arab Charter on Human Rights, Art. 27(a); ACHPR, Art. 12(2). On voluntary repatriation of refugees under international refugee law, see Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, 10 September 1969, Art. 5; Cartagena Declaration, para. 12.

190 See, for instance, GC IV, Arts 26, 27(1) (protected persons), 49(3) (occupied territory), 82(2), 116 (internees); AP I, Arts 32–34, 74, 75(5), 77(4); AP II, Arts 4(3)(b), 8; ICRC Customary Law Study, above note 5, Rules 105, 109, 112, 116, 117, 123, 125, 131.

191 AP I, Art. 32; ICRC Customary Law Study, above note 5, commentary on Rule 117. Regarding dead persons, see ICRC Commentary on APs, above note 46, paras 1203, 1216.

192 ICRC Customary Law Study, above note 5, Rules 116, 117; ICRC Commentary on APs, above note 46, para. 1216. See also Heike Spieker, “Maintenance and Re-establishment of Family Links and Transmission of Information”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 7, p. 1120.

193 On Articles 33, 34 and 74 of AP I, see ICRC Commentary on APs, above note 46, paras 149, 1239.

194 See, for instance, GC IV, Arts 24(3) (for the whole of civilian populations), 43(2) (protected persons in territory of a party), 50(2) (occupied territory), 105–106 (internees), 136–138, 140 (protected persons); AP I, Arts 33(2), 78(3); ICRC Customary Law Study, above note 5, Rule 123.

195 GC IV, Art. 25 (for the whole of civilian populations). See also Arts 106–107, 112, 125 (internees); ICRC Customary Law Study, above note 5, Rules 105, 125, 126.

196 H. Spieker, above note 192, p. 1100.

197 GC IV, Art. 26 (for the whole of civilian populations); AP I, Art. 74; ICRC Customary Law Study, above note 5, Rule 105. See also Rule 131: “In case of displacement, all possible measures must be taken in order that … members of the same family are not separated.”

198 M. Bothe, K. J. Partsch and W. A. Solf, above note 34, pp. 507–508.

199 ICRC Commentary on APs, above note 46, para. 2998.

200 For a more detailed overview of the obligations under common Article 1, see K. Dörmann and J. Serralvo, above note 151, pp. 707–736.

201 H. Spieker, above note 192, p. 1121.

202 See, for instance, GC IV, Arts 136–141 (for protected persons); AP I, Art. 33(1)–(3) (for “persons who have been reported missing by an adverse Party” – wider personal scope than GC IV); ICRC Customary Law Study, above note 5, Rule 117. On the scope of Article 33 of AP I, see M. Bothe, K. J. Partsch and W. A. Solf, above note 34, pp. 198–199. See also A. Petrig, above note 7, pp. 260, 270.

203 ICRC Customary Law Study, above note 5, Rule 117; ICRC Commentary on APs, above note 46, paras 1222, 1256–1259.

204 ICRC Commentary on APs, above note 46, para. 1259.

205 Sassòli , Marco , Bouvier , Antoine A. and Quintin , Anne , How Does Law Protect in War? , 3rd ed. , Vol. 1, ICRC , Geneva , 2011 , p. 12 Google Scholar .

206 A. Petrig, above note 7, p. 268.

207 ICRC Commentary on APs, above note 46, paras 1218–1219.

208 GC IV, Arts 137(2), 140; ICRC Commentary on GC IV, above note 27, pp. 531–532.

209 GC IV, Arts 16(2) (whole of the populations), 129(2), 130–131 (internees); AP I, Arts 17, 33, 34; ICRC Customary Law Study, above note 5, Rules 112, 116. See also ICRC Customary Law Study, above note 5, Rules 113–115.

210 M. Bothe, K. J. Partsch and W. A. Solf, above note 34, p. 202.

211 Ibid ., pp. 203–204.

212 See, for instance, AP II, Arts 4(3)(b), 5(2)(b); ICRC Customary Law Study, above note 5, Rules 98, 105, 119–120, 123, 132 (preventing family separation in case of displacement).

213 ICRC Customary Law Study, above note 5, Rule 105.

214 AP II, Arts 4(3)(b); ICRC Commentary on APs, above note 46, paras 4553–4554.

215 AP II, Art. 5(2)(b); ICRC Customary Law Study, above note 5, Rules 105, 125, 126.

216 ICRC Commentary on APs, above note 46, Rules 105, 117.

217 AP II, Art. 8; ICRC Customary Law Study, above note 5, Rules 112, 116. See also Rules 113, 115.

218 ICRC Commentary on APs, above note 46, para. 4657.

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• Volume 99, Issue 904
• Helen Obregón Gieseken
• DOI: https://doi.org/10.1017/S1816383118000103

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7 Protection of Civilians under International Humanitarian Law

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The chapter notes that sixty-five years after the adoption of the Fourth Geneva Convention, the number of civilian casualties remains alarmingly high in many armed conflicts. It concludes that too often belligerents seem to act with utter disregard for the protection of civilians, with many of the most egregious attacks against civilians committed by non-State actors. The chapter considers whether that state of affairs can be apportioned to the conceptual limitations of international humanitarian law, or whether it is simply a result of the challenges posed by the complex dynamics of many contemporary armed conflicts. It argues that improving the protection of civilians through compliance with international humanitarian law requires more integrated efforts by the international community, not only in preventing harm from occurring, but also to address the root causes of today’s humanitarian challenges.

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Refugees and International Law: The Challenge of Protection

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A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (1 January 2021) | Viewed by 78961

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Special issue editor.

Dear Colleagues,

The current global “refugee crisis” is unprecedented. According to the UNHCR, in 2017, the number of persons forcibly displaced from their homes averaged, incredibly, 44,400 per day, 16.2 million people were newly displaced, 52 percent of the world’s refugees were children, under 18 years, there were 3.1 million asylum-seekers worldwide, and, there were 68.5 million people forcibly displaced. The 2016 New York Declaration on Refugees and Migrants and the 2017 Global Compact on Safe, Orderly and Regular Migration are prime examples of how the United Nations and the international community have attempted to respond to the global “refugee crisis.” Ineluctably, the significance of international law is becoming ever more relevant and important to the protection of refugees and other forced migrants’ fundamental human rights and dignity. This Special Issue will complement the existing ever growing academic literature on refugees by focussing specifically on how international law, in general, can strengthen the protection of the world’s most vulnerable people, refugees. The Special Issue will be focussed primarily on international refugee law, but, it will also encompass how international human rights law, international humanitarian law, and, international criminal law can enhance refugee protection globally.

The unprecedented number of persons forcibly displaced in the world today, according to the UNHCR, has now exceeded 68.5 million. Astonishingly, more than two-thirds of the refugees worldwide came from five countries: the Syrian Arab Republic (6.3 million); Afghanistan (2.6 million); South Sudan (2.4 million); Myanmar (1.2 million); and, Somalia (986,400). All of these countries have been embroiled in protracted armed conflict for years. Most states, particularly in the Global North, are doing what they can to close their borders and restrict access to international protection, contrary to their obligations under international law. International refugee law is at the very core of our most fundamental human right to seek protection from persecution and the peremptory norm of non-refoulement . Other branches of international law are vitally important in the protection of refugees, including: international human rights law, international humanitarian law, and international criminal law.

This Special Issue provides a forum for addressing some of the critical legal issues involving refugees and international law. Possible legal issues include, but are not limited to the following: When and how can international humanitarian law and international criminal law advance the protection of refugees? What other branches of public international law can support and inform the application and interpretation of international refugee law while enhancing the protection of those seeking asylum? How can international human rights law best be applied to strengthen the protection of refugees at all stages of the refugee cycle? Given the fractured nature of international criminal law jurisprudence, how can it best be applied and interpreted to ensure that refugee protection is not compromised, the impunity gap is not widened, and, justice is done? What is required to ensure that international refugee law is uniformly and consistently applied across states and the UNHCR?

Contributions to this Special Issue of Laws on these and other related questions that deal with the central theme of “Refugees and International Law: The Challenge of Protection” are most welcomed.

Prof. James C. Simeon Guest Editor

Manuscripts should be submitted online at www.mdpi.com by registering and logging in to this website . Once you are registered, click here to go to the submission form . Manuscripts can be submitted until the deadline. All submissions that pass pre-check are peer-reviewed. Accepted papers will be published continuously in the journal (as soon as accepted) and will be listed together on the special issue website. Research articles, review articles as well as short communications are invited. For planned papers, a title and short abstract (about 100 words) can be sent to the Editorial Office for announcement on this website.

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References:

Betts, Alexander and Collier, Paul.  Refuge: Rethinking Refugee Policy in a Changing World. Oxford: Oxford University Press, 2017.                       

Betts, Alexander and Collier, Paul. Refuge: Transforming a Broken Refugee System. London: Penguin Random House, 2017.

Chimni, B. S. ed., International Refugee Law: A Reader. New Delhi, Thousand Oaks, California: Sage Publications, 2000.

Clark, Tom. The Global Refugee Regime: Charity, Management and Human Rights. 2 nd Edition, Victoria, B.C.: Trafford Publishing, 2008.

Clark, Tom. Singh to Suresh: Non-Citizens, the Canadian Courts and Human Rights Obligations, Victoria, B.C.: Trafford Publishing, 2006.

Dauvergne, Catherine. Making People Illegal: What Globalization Means for Migration and Law. Cambridge: Cambridge University Press, 2008.

Dauvergne, Catherine. The New Politics of Immigration and the End of Settler Societies. Cambridge: Cambridge University Press, 2016.

Edwards, Alice, Violence against Women and International Human Rights Law .  Cambridge: Cambridge University Press, 2011.

Feller, Erika; Turk, Volker; Nicholson, Frances, (eds.) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection. Cambridge: Cambridge University Press, 2003.

Fiddian-Qasmiyeh, Elena; Loescher, Gil; Long, Katy; Sigona, Nando, eds. The Oxford Handbook on Refugee and Forced Migration Studies . Oxford: Oxford University Press, 2014.

Hathaway, James C. The Rights of Refugees in International Law. Cambridge: Cambridge University Press, 2005.

Hathaway, James C. and Foster, Michelle. The Law of Refugee Status . Second Edition, Cambridge: Cambridge University Press, 2014.

Goodwin-Gill, Guy S. and Lambert Helene (eds.) The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Community. Cambridge: Cambridge University Press, 2010.

Goodwin-Gill, Guy S. and McAdam, Jane. The Refugee in International Law. Third Edition, Oxford: Oxford University Press, 2007.

Jones, Martin and Baglay, Sasha, Refugee Law. Toronto, Irwin Law, 2007.

Kneebone, Susan. (ed.) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives. Cambridge: Cambridge University Press, 2009.

Li, Yao. Exclusion from Protection as a Refugee: An Approach to Harmonizing Interpretation. Leiden: Brill Nijhoff, 2017.

Loescher, Gil, Betts, Alexander, Milner, James. United Nations Higher Commissioner for Refugees (UNHCR): The Politics and Practice of Refugee Protection into the Twenty-First Century. London and New York: Routledge, 2008.

Price, Matthew E. Rethinking Asylum: History, Purpose, Limits. Cambridge: Cambridge University Press, 2009.

Simeon, James C. (ed.), Critical Issues in International Refugee Law: Strategies Towards Interpretative Harmony. Cambridge: Cambridge University Press, 2010.

Simeon, James C. (ed.), The UNHCR and the Supervision of International Refugee Law. Cambridge: Cambridge University Press, 2013.

UNHCR, Global Trends: Forced Displacement in 2017 , Geneva, Switzerland, 2018, http://www.unhcr.org/5b27be547.pdf (accessed on 26 August 2018)

United Nations General Assembly, Resolution Adopted by the Assembly 19 September 2016, A/RES/71/1, New York Declaration for Refugees and Migrants , http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/1 (accessed on 26 August 2018)

United Nations, Refugees and Migrants, “Compact for migration,” https://refugeesmigrants.un.org/migration-compact (accessed August 27, 2018)

van Sliedregt, Elies. The Criminal Responsibility of Individuals for Violations of International Humanitarian Law. The Hague: TMC Asser Press, 2003,

van Sliedregt, Elies and Vasiliev, Sergey. (eds.) Pluralism in International Criminal Law. Oxford: Oxford University Press, 2014.

Whittaker, David, Asylum Seekers and Refugees in the Contemporary World. London: Routledge, 2006.

Zambelli, Pia, Annotated Refugee Convention 2009. Toronto: Thomas Caswell, 2009.

• Refugees and International Law
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Research guide for ihrc at addis ababa school of law (ethiopia), law of armed conflict, ihl & national security, ihl & human rights law, ihl & cyber crimes, detention in non-international armed conflicts.

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International humanitarian law (aka "laws of armed conflict" or "laws of war") is the set of rules that regulates conduct in armed conflict and seeks to limit effects of armed conflict. The main sources of IHL rules and regulations are treaties and customary international law. 

A treaty is “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation." ( VCLT, Art. 2 ) For assistance with treaty terminology, see the UN Treaty Glossary .

Key treaties relevant to international humanitarian law include: 

• The Hague Conventions (and Annexed Regulations) of 1899 and 1907
• The Geneva Conventions and Protocols  (four Geneva Conventions of 1949 and Additional Protocols)

Customary International Law

Customary international law refers to rules of law derived from consistent state practice of international acts over time occurring out of a sense of legal obligation. Thus, a rule of customary international law is demonstrated by showing evidence of two elements: state practice (objective element) + and opinio juris (subjective element). 

• ICRC Customary IHL Database : online version of ICRC's study on customary international humanitarian law with two sections: rules and practice.

The law of armed conflict (aka international humanitarian law) is the body of international law that regulates behavior during armed conflict. 

Relevant subject headings to find books on the law of armed conflict include:

• Humanitarian law
• War (International law)
• Military weapons (International law)

Journal Articles (Open Access)

• Vol. 51 Issue #3 of the Vanderbilt Journal of Transnational Law was a special issue on the law of armed conflict. Other articles from this issue can be accessed here . 
• Eric Talbot Jensen, The Future of the Law of Armed Conflict: Ostriches, Butterflies, and Nanobots , 35 Mich. J. Int'l L. 253 (2014).
• UN Audiovisual Library of International Law: Law of Armed Conflict Provides access to a video lecture series pertaining to the law of armed conflict.
• Rule of Law in Armed Conflict Project Website that monitors situations of armed conflict.

National security can be defined as "the ability of a state to cater for the protection and defence of its citizenry." [ UN Chronicle, National Security vs. Global Security ] The issue of whether protecting national security is a legitimate ground to detain and restrict the liberties of persons in armed conflict situations gives rise to international humanitarian law and human rights law questions. 

Books & Supplements

• International Humanitarian Law Teaching Supplement - National Security Law Document produced by the International Humanitarian Law Clinic at Emory University School of Law on the integration of national security and IHL.

Research Papers

• Zelalem Mogessie Teferra, National Security and the Right to Liberty in Armed Conflict: The Legality and Limits of Security Detention in International Humanitarian Law , 98 Int'l Rev. Red Cross 961 (2016). 

International human rights law deals with the protection of individuals and groups against violations of civil, political, economic, social, and cultural rights under international law. International human rights law is a public international law topic. Human rights law and IHL are complementary with some overlapping aims and objectives. Please see the ICRC's What is the difference between IHL and human rights law?  webpage for an overview of their origins and scope of application.

Online Casebooks

• ICRC - IHL and Human Rights Provides an overview and bibliography of cases and documents pertaining to IHL and human rights law.

Research Guides

• PLRC Research Guide on International Human Rights Law Research Research guide that provides an overview of how to conduct international human rights research. This guide was created for Northwestern Pritzker School of Law, so some of the resources on this guide are restricted to the Northwestern Law community.

Events & Lectures

• Center for Strategic & International Studies: Restoring Humanitarian Access in Ethiopia Video and transcript of event held in February 2021 by CSIS focused on the challenges to humanitarian access in Ethiopia.
• African Human Rights Law Journal Open access, peer-reviewed journal published twice a year (July & December) by the Pretoria University Law Press (PULP), which took over from Juta as publisher in 2013. It is published in association with the Centre for Human Rights, Faculty of Law, University of Pretoria.

Cyber warfare refers to war that is waged within cyberspace rather than through military hostilities on the ground. 

• Jonathan Horowitz, Cyber Operations under International Humanitarian Law: Perspectives from the ICRC , 24 Am. Soc'y of Int'l L. (2020).
• U.N. Office on Drugs and Crime (UNODC) Cybercrime Repository Database containing national legislation and cases pertaining to cyber crime.

Article 3 common to the four Geneva Conventions 1949 addresses conflicts not of an international character where one or more non-State armed groups are involved. For analysis of treaty provisions, see the ICRC Treaties, State Parties and Commentaries Database . 

Book Chapters

• Frederic Megret, Detention by Non-State Armed Groups in Non-International Armed Conflicts: International Humanitarian Law, International Human Rights Law and the Question of Right Authority , in  International Humanitarian Law and Non-State Actors: Debates, Law and Practice, (Ezequiel Heffes, Marcos D. Kotlik & Manuel Ventura eds.) (forthcoming). 
• Knut Dörmann, Detention in Non-International Armed Conflicts , 88 Int'l L. Studies 349 (2012). 
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TANGGUNG JAWAB NEGARA ATAS DIGUNAKANNYA SENJATA SPACE-BASED MISSILE INTERCEPTOR SEBAGAI BENTUK UPAYA SELF-DEFENSE DARI NEGARA PENYERANG TERHADAP NEGARA PIHAK KETIGA DITINJAU DARI HUKUM INTERNASIONAL

Self-defense as an inherent right owned by a country is regulated in Article 51 of the UN Charter and due to the use of Space-Based Missile Interceptor (SBMI) weapons in space, the 1967 outer space treaty must also be guided. Because Article 4 of the 1967 Outer Space Treaty prohibits the use of weapons in space, the legality of using SBMI weapons is questionable. Therefore, this study was conducted to determine the legal provisions, forms of state accountability and the process of prosecuting compensation for countries using these weapons according to international law. The results of the study indicate that the use of SBMI weapons does not conflict with international law, because it is based on Article 103 of the UN Charter which states that if there are provisions in other legal rules that are contrary to the UN Charter, the UN Charter must be guided. So that self-defense actions based on Article 51 of the UN Charter do not violate the law. The party that must be absolutely responsible is the country that started the conflict, because it has violated the rules of international law in Article 2 paragraph (4) of the UN Charter and international humanitarian law. The compensation process is carried out according to the rules of the space liability convention 1972 and if in practice the party who is responsible does not show good faith in providing compensation, then it can be continued by referring to the dispute resolution process in the UN Charter.

Man against machine: Debates in the expert community on the lethal autonomous systems

In the recent years debates surrounding the autonomous weapons systems development and regulation have gained a new momentum. Despite the fact that the development of such type of weapons continues since the twentieth century, recent technological advances open up new possibilities for development of completely autonomous combat systems that will operate without human in-tervention. In this context, international community faces a number of ethical, legal, and regulatory issues. This paper examines the ongoing debates in both the Western and the Russian expert community on the challenges and prospects for using lethal autonomous systems. The author notes that Russian and Western discourses on most of the issues have very much in common and diff erences are found mainly in the intensity of debates — in the West they are much more ac-tive. In both cases the most active debates focus around two issues: the potential implications of fully autonomous weapons systems including the unclear line of accountability, and the prospects for international legal regulation of the use of lethal autonomous weapons. Both the Russian and the Western experts agree that the contemporary international humanitarian law is unable to handle the challenges posed by aggressive development of the lethal autonomous weapons. All this points to the need to adapt the international humanitarian law to the new realities, which, in turn, requires concerted actions from leading states and international organizations.

Computational modelling of the proportionality analysis under International Humanitarian Law for military decision-support systems

Methodology of regulation of new types of weapons by means of international humanitarian law: emergence and development.

The purpose of the article is to identify the methodology, used in international humanitarian law for the regulation of new types of weapons. Under the settlement of the objectives of the article, regulation is understood as the establishment of permits, prohibitions and restrictions on the use of this type of weapon in accordance with the basic principles of international humanitarian law. The article is methodologically based on the works of foreign and Ukrainian researchers, devoted to the problems of the settlement of new weapons systems in international humanitarian law. The empirical basis of the article was formed by international treaties in the field of international humanitarian law and codified customs of this industry, as reflected in the codifications, developed by the International Committee of the Red Cross. The article establishes that in international humanitarian law there is an obligation for states to assess the compliance of new weapons systems with international humanitarian law. At the same time, this norm has two disadvantages. First, it is too abstract, which allows states to avoid the obligation to assess each time with reference to the fact that a certain type of weapon does not fall under the definition of a new type of weapon. Secondly, international humanitarian law does not contain specific mechanisms to hold violating states accountable. It is concluded, that it is necessary to revise the current international legal regulation of the obligation to assess new weapons systems in the direction of its concretization and strengthening of responsibility for non-compliance. Corresponding changes can be made to the Additional Protocol to the Geneva Conventions of 1977, or introduced by adopting a separate protocol.

Illegal Control Over the Territory in International Law and the Status of Donbas Determination

Total rejection of the aggression and territory occupation in the international law leads to their hybrid and concealed forms using gangs and mercenaries, proclaiming new “states” etc. These activities constitute serious threat to international security, can cause and already cause the fragmentation of states, anarchy, criminalization of politics, new forms of expansionism and so on. The authors of the article generalize the forms of illegal control over the territory in international law and their application considering the status of Donbas determination. International law for more than a century provides for the possibility of separate regulation of the sovereignty and legal rights of the state to the territory, on the one hand, and the implementation of the regime of illegal control over the territory – on the other. Authors argue that in the modern sense, primarily developed by doctrine and courts, illegal control over the territory can be considered as a legal regime, one of the forms of which is occupation, while others are defined as effective, overall, general, de facto control and related to undisclosed actions and informal means used by the aggressor states. This regime is characterized by the exercise of power over the territory by the will of a foreign state, and the forms of implementation of the regime differ depending on whether such a will is officially recognized or concealed. The transformation of international humanitarian law after the Second World War erased the boundaries between recognized and officially unrecognized occupation. But unlike occupation, the fact of which may be obvious, the fact of effective or other control over the territory requires the determination by judicial authorities. The qualification of illegal control by the Russian Federation of the Donbas in national and international law is ambiguous. The authors argue that the full recognition of the international armed conflict between Ukraine and Russia in Donbas, as well as Russia’s illegal control over latter should be expected in the process of consideration of a number of cases in the international judicial institutions.

Gilad Ben-Nun, The Fourth Geneva Convention for Civilians: The History of International Humanitarian Law (I.B. Tauris 2020), ISBN 9781838604301, 288 pp, GBP 85.00

International environmental protection in armed conflicts: traditional legal regulation and interpretation novelties.

The paper is devoted to international legal protection of the environment during armed conflicts. The author emphasizes that armed conflicts, both international and non-international, continue to be one of the most serious threats to a healthy environment. An armed conflict taking place in the environment invariably poses a threat to ecosystems.The author summarizes that in international law there are special norms for the protection of natural environment during armed conflicts. At the same time, increasing the level of protection requires a clearer definition of the scope of application of customary law and the further development of treaty rules. While the objectives of protecting the natural environment are linked to the survival and protection of civilians, recognition of environmental protection during armed conflict as such constitutes an important trend. International law calls on States to enter into agreements that provide for additional protection of the natural environment during armed conflicts. The concept of “protecting the natural environment” in international humanitarian law refers to a wide range of obligations that can help protect the natural environment or its parts from damage. A high threshold for potential harm continues to pose the risk that such protection is not fully applicable in practice. There is an obvious tendency to use the potential of the principles of international environmental law when applying the norms of international humanitarian law. Thus, even in cases where the assessment of new means and methods of warfare does not provide scientific certainty with regard to their impact on the natural environment, this does not absolve the parties to the conflict from taking appropriate precautions. It is not enough that there are important rules of international humanitarian law protecting the natural environment during armed conflict; they need to be better disseminated, implemented and enforced, as well as validated and clarified.

Mats Deland, Mark Klamberg, Pål Wrange (eds) International Humanitarian Law and Justice: Historical and Sociological Perspectives (Routledge 2020) 242pp ISBN 9780367498566 (ebook)

Who are protected by the fundamental guarantees under international humanitarian law part 2: breaking with the control requirement in light of the icc case law.

Abstract International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict and which apply to individuals even if they do not fall into the categories of specifically protected persons under the Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific conduct against persons, such as murder, cruel treatment, torture, sexual violence, or against property, such as pillaging. However, it is traditionally held that the entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements in light of the existing icc case law. That study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant icc case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which was published in the previous issue of this journal, dealt with the status requirement. It especially delved into the icc decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocated the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments relied on ihl provisions protecting specific persons as well as on the potential for humanizing ihl on the matter and also on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which is published here, deals with the control requirement. It examines several icc cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees may apply in the conduct of hostilities. This concerns mainly those guarantees whose application or constitutive elements do not imply any physical control over the concerned persons or properties.

Drone warfare and International Humanitarian Law: the U.S., the I.C.R.C., and the contest over the global legal order

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Regulating the use of Armed Drones in International Humanitarian Law

Nandika kaul.

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Student at Symbiosis Law School, Pune, India

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Nations worldwide are quickly adapting to newer technologies aimed at modern warfare. The armed Unmanned Aerial Vehicle or ‘drone’ is one of them. The scope of modern-day usage of drones has extended from its traditional roles of intelligence gathering, surveillance and reconnaissance1 to target monitoring and carrying out precision strikes. Some of the most recent examples of state militaries leveraging their armed drone capacities include the drone strikes in the Israeli- Palestinian conflict, the Armenia- Azerbaijan War 2, the ongoing Russia-Ukraine War 3 etc. With the growing use of any modern technology in warfare comes the urgency of formulating laws to regulate its use such that it is ethical and in line with International Laws. The regulation of armed drones can be a challenge to policymakers because of the fundamental ethical questions it poses in both wartime and peacetime: Firstly, who can or cannot be targeted in a drone attack during times of conflict? What is a conflict? If drones are unmanned, who is liable for any war crimes committed by means of the drone? And are our existing frameworks capable of addressing future developments in the field of modern drone warfare? This paper attempts to answer these questions while throwing light on additional recommendations that could be implemented to create a robust legal framework capable of tackling the humanitarian implications of technological warfare.

• armed drones
• drone warfare
• International Humanitarian Law
• Unmanned Aerial Vehicles
• technological warfare

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International Journal of Law Management and Humanities, Volume 6, Issue 3, Page 3225 - 3232

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

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Russian War Crimes Against Ukraine: The Breach of International Humanitarian Law By The Russian Federation

Christopher Martz et al., Russian War Crimes Against Ukraine: The Breach of International Humanitarian Law By The Russian Federation, GLOBAL ACCOUNTABILITY NETWORK 1, [pin cite] (2022), [url if viewed online].

276 Pages Posted: 27 May 2022

Christopher Arima (Martz)

Journal of Global Rights and Organizations; Syrian Accountability Project; Syracuse University College of Law

Date Written: May 11, 2022

This document will primarily cover the commission of war crimes and crimes against humanity by the Russian Federation from February 24, 2022, to April 1, 2022. The basis of this report is founded upon open-source research and evidence collection by an inter-collegiate investigative team from across the United States, collecting reports, photographic, and video evidence of crimes occurred in Ukraine. The contents of this document will provide the reader with a brief, but important, historical overview of Ukraine and its relationship with the Russian State. In addition, it will articulate the international legal mechanisms of accountability, identify individuals most responsible for the commission of crimes in Ukraine, and provide a series of representative charges to be used in an international criminal tribunal. In its conclusion, this paper calls upon the international community to respond by utilizing the available international accountability mechanisms, as the Russian Federation is openly committing crimes of aggression, war crimes, and crimes against humanity. For the readers reference, Section V contains a command-and-control diagram produced by the Global Accountability Network and its dedicated researchers. In addition, this document contains appendices that provide the reader more detailed information regarding the Russian Federation’s criminal activity in Ukraine. Appendix A is a sample draft of an international criminal indictment against President Putin. Appendix B is a crime narrative detailing, by date, the crimes committed in Ukraine by the responsible party. In addition, Appendix C expands on the crime narrative and provides a more detailed breakdown of the violations of International Humanitarian Law, as well as documenting violations of the Ukrainian Penal Code. Appendix D is a comprehensive dossier detailing the command-and-control structure of the Russian political and military senior leadership. This “dossier” lists the individuals responsible for the atrocities in Ukraine, and documents relevant information surrounding their responsibility and complicity. Notably, there are omissions from this document that are deserving of discussion and further analysis. As of the writing of this very section, an atrocity has occurred in Bucha on a devastating scale. Recently, the bodies of 410 civilians have been recovered from areas in the wider Kyiv region after Ukrainian forces regained complete control, with reports of widescale murder, torture, and rape. While the atrocity of Bucha falls outside the temporal scope of this document, the efforts of the Global Accountability Network’s Ukraine Task Force does not end here. This document is merely the foundational document and will launch a series of subsequent investigations and analyses of crimes committed in Ukraine. The Ukraine Task Force will not allow Bucha to be forgotten and will be the centerpiece analysis of its next publication.

Keywords: Ukraine, International Law, Rome Statutes, Geneva Convention, Crimes Against Humanity, Russian Federation, War Crimes

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Preparation of international humanitarian law topics for the 31st International Conference

Remarks by Knut Dörmann, head of the legal division at the ICRC, informal meeting of legal advisers, United Nations, New York, 24 October 2011

It’s a great honour to be invited to speak before you again this year. Many thanks to the group of states led by Sweden in organising this venerable gathering.

As you know, the International Conference of the Red Cross and Red Crescent will take place this year, 28 November – 1st December in Geneva. Today I’d like to share with you highlights of preparations for the Conference topics related to international humanitarian law (IHL). These are:

• ICRC’s ongoing project on Strengthening Legal Protection for Victims of Armed Conflict
• ICRC Challenges Report
• Four Year Action Plan for the implementation of IHL , and
• Health Care in Danger, a new ICRC project launched in 2011.

An encouraging number of States have contributed in the preparatory phase and helped us to prepare draft resolutions for the International Conference. Further input from States is needed, which I will specify through my remarks today.

1. Strengthening Legal Protection for Victims of Armed Conflicts

This major initiative is the centrepiece of the agenda of the International Conference, with a debate in plenary and the adoption of a resolution to give direction for reflection and work in years to come. Allow me to give you some background in particular for those who haven’t followed this initiative closely.

As most of you know, the ICRC conducted a major in-depth internal study on strengthening legal protection for victims of armed conflicts. In September last year, the ICRC President shared our conclusions with States through your Permanent Missions in Geneva. In a nutshell, the study concluded that IHL remains, on the whole, an appropriate framework for regulating the conduct of parties to armed conflicts. To improve the situation of persons affected by armed conflict, what is required in most cases is greater compliance with the existing legal framework.

But the ICRC study also concluded that ensuring better protection for these persons involves strengthening the law in four specific areas, namely: (i) protection for persons deprived of liberty in non-international armed conflicts; (ii) international mechanisms for monitoring compliance with IHL and reparations for victims of violations; iii) protection of the natural environment; and (iv) protection of internally displaced persons.

Following the President’s statement, the ICRC consulted States on the conclusions of its study. These consultations suggested that further work should focus on two topics – instead of the initial four - namely protection for persons deprived of their liberty in non-international armed conflicts, and international mechanisms for monitoring compliance with IHL. These two attracted the most interest from States.

On the first - legal protection of persons deprived of their liberty - States consulted generally recognized the need to ensure better legal protection, in particular for persons detained for security reasons during non-international armed conflicts. Clear legal guidance is needed to prevent arbitrary detention. Some States insisted that risks which detainees face when transferred from one authority to another should be addressed. Others expressed interest in conditions of detention - especially in specific protection needs of certain categories of persons, such as women, children, the elderly and disabled.

On the second topic - compliance with IHL - States consulted generally recognized that most of the mechanisms provided under the 1949 Geneva Conventions and Additional Protocol I have proven insufficient so far. Existing procedures for supervision of parties to armed conflicts have rarely been used in practice. Further, many States agreed that mechanisms developed outside the ambit of IHL (e.g., human rights bodies) also have limits and were not developed for implementing this body of law. They concurred that discussion on improving compliance with IHL is a priority.

This discussion with States on strengthening legal protection will be continued during the 31st International Conference. We have issued a report with the main conclusions of the study and consultations with States. This report will be discussed in plenary, allowing all interested participants - including those that did not take part in the initial consultation - to express their views. To guide debate, participants will receive advance questions. Among others, they will be asked to identify areas that require further work in order to improve the protection of persons deprived of liberty in the context of armed conflict and to improve compliance with IHL. Participants will be invited to express their views on ways to take the dialogue forward. A draft resolution on strengthening legal protection for victims of armed conflicts will be submitted to the Conference. Since July, the ICRC has been consulting States on the draft resolution. This inclusive consultation process aimed at allowing all States to express their views before the Conference. States from all regions participated. We received detailed and substantive comments that indicate genuine interest from States. We are very grateful to all who contributed. Based on this feedback, the ICRC sent an official draft resolution to all participants in mid-October – also available on the Conference website.

I want to briefly now highlight some key elements of the draft resolution – copies have been distributed today.

The first paragraph focuses on the enormous suffering caused by armed conflicts today. This is the very reason why we believe that such a resolution is necessary.

The resolution reiterates that IHL remains as relevant today as ever in international and noninternational armed conflicts and continues to provide protection for all victims of armed conflict. In other words, the resolution does not question the protective framework of existing law.

However, the resolution recognizes that constant attention must be paid to military and humanitarian concerns arising from armed conflict to ensure that IHL remains relevant in providing legal protection to all victims. The operative paragraphs give concrete meaning to this idea. The resolution seeks notably to ensure that future work continues in the two priority areas.

I would underline that the draft resolution does not prejudge any outcome for future work on strengthening IHL. The consultation process showed that there are diverging views on how to address humanitarian concerns in legal terms. In particular, a number of States questioned whether new treaty rules might be the most appropriate solution. Therefore, the draft resolution clearly expresses that the outcome of efforts to strengthen IHL must remain open at this stage. It provides that strengthening IHL entails different options, such as reaffirmation, clarification or development of the law. The best options for the two priority areas must be decided at a later stage, based on discussions on substantive issues.

The draft resolution also makes clear that States have the primary role in the development of IHL . It recalls the specific role of the ICRC, as recognized by the Statutes of the International Red Cross and Red Crescent Movement. In substance, when it comes to the development of IHL, the ICRC may make proposals, but States ultimately decide.

To conclude this part, I would like to encourage you to engage in the debate on strengthening legal protection and to support the draft resolution at the International Conference. Real and long-term changes can only be achieved if States are committed to them. In the weeks before the Conference, we would appreciate receiving further comments from States – including those that have not expressed their views so far.

2. IHL and the Challenges of Contemporary Armed Conflicts

Secondly, the ICRC will present to the 31st Conference its third Report on " IHL and the Challenges of Contemporary Armed Conflicts ". Like past editions, this third "Challenges Report" is not submitted to the Conference for amendment or approval. It is a stand-alone ICRC product. We hope that the report will contribute in years to come to generating indepth discussion on these challenges and the best way to address them.

Most topics addressed in the third Challenges Report were not dealt with in past editions. They were selected because they are of increased interest to States, other stakeholders, and the ICRC. These topics are: the notion and typology of armed conflicts; the interplay between international humanitarian and human rights law; humanitarian access and assistance; IHL and multinational forces; new technologies of warfare; the use of explosive weapons in densely populated areas; the Arms Trade Treaty; and the conflation of IHL and the legal framework governing terrorism.

The Challenges Report also includes topics the ICRC has researched and worked on since the last Conference, through informal expert meetings or in collaboration with governments. The Report thus outlines results of its expert project on the law of occupation. It briefly describes the process aimed at clarifying the notion of direct participation in hostilities under IHL, including reactions it received following publication. It likewise highlights the joint Swissgovernment/ICRC led process that produced the Montreux Document on private military and security companies , and related initiatives.

The format and length of the International Conference do not permit a discussion of all these topics. The ICRC thus decided to focus on one - "humanitarian access and assistance" – for debate in the IHL Commission. Our sense is that the humanitarian and legal challenges related to this topic are of interest to all Conference participants. The IHL Commission will open with panel presentations. Debate will be facilitated through guiding questions circulated in advance. These questions will invite participants to share their experience and views on the most appropriate ways to provide rapid and appropriate response to populations in need of humanitarian assistance. The debate will put emphasis on the relevant rules of IHL. Participants will be asked how to ensure better understanding and knowledge of this legal framework and better compliance with relevant rules by all parties to armed conflicts.

The debate is not intended to address these issues in a conclusive way. The outcome will besummarized by a Rapporteur and included in the Conference proceedings.

3. Four Year Action Plan

The Action Plan submitted for adoption by the International Conference pursues the goal of improving protection of victims of armed conflicts through better implementation of existing IHL. The Action Plan is structured around objectives and specific action points. The adopting resolution would invite States and components of the Movement to contribute to implementation of these action points.

The objectives in the Action Plan are: 1) to enhance access by civilian populations to humanitarian assistance in armed conflicts; 2) to enhance protection accorded to specific categories of persons in armed conflict - in particular children, women, and persons with disabilities; 3) to enhance protection of journalists in armed conflict; 4) to improve incorporation and repression of serious IHL violations; and 5) to strengthen controls on arms transfers.

The action points include measures designed to prevent IHL violations (like dissemination, training and ratification of treaties), measures of protection and assistance to victims of armed conflicts during hostilities, and measures addressing direct consequences of violations. These reflect States' obligations to respect and ensure respect for IHL.

A first draft Action Plan and resolution were sent to participants for comment in August. Feedback from States and National Red Cross and Red Crescent Societies indicates general agreement with the draft resolution.

While some participants suggested further objectives in the Action Plan, others cautioned that objectives should remain achievable. We thus took great care in drafting a realistic Action Plan. In addition, the draft Resolution indicates that the Action Plan should be implemented by participants in accordance with their respective powers, mandates and capacities. It was decided to maintain the objectives in the draft Action Plan, and not to add further objectives, for example on the protection of elderly or IDPs as suggested by some States.

Based on feedback received from States, to avoid duplication, a new paragraph indicates that work ongoing in other international fora and by other humanitarian actors in relation to some objectives and action points should be taken into account.

The ICRC included, to the extent possible, other comments received in a new draft Action Plan sent this month in the official mailing of conference documents. We posted on the conference website Model Pledges relating to specific action points. The ICRC welcomes further comment on the draft Action Plan and encourages pledges from States on the implementation of objectives and action points in the Plan.

4. Health Care in Danger

Finally, allow me to say a few words on a key ICRC project with important legal underpinnings, Health Care in Danger.

Insecurity of health care in armed conflicts and other situations of violence is widespread and affects large populations but has not been systematically documented and analyzed. From 2008 to 2010, the ICRC conducted a study across 16 operational contexts. This revealed patterns of insecurity that include direct attacks on patients, health infrastructures and personnel; denial of access to care; and general insecurity, arrests, looting and kidnapping. These patterns indicate high levels of vulnerability both for the wounded and sick and for health staff.

Insecurity of health care is likely one of the biggest humanitarian problems today in terms of numbers of people affected. Yet it is largely under-recognised. The ICRC has decided to address this challenge. It will mobilize its network of delegations, the Red Cross and Red Crescent Movement, States party to the Geneva Conventions, the health community and other actors to identify solutions and commit to their concrete implementation. The project will not develop new laws, but find ways to better implement existing norms and procedures to strengthen protection of the medical mission and the wounded and sick in contexts where we work. In recent months, the ICRC sent draft resolutions to States and National Societies and integrated most of their comments.

At the International Conference, the ICRC will launch a four-year process aimed at improving safe access to effective and impartial health care. Later, a series of expert consultations and workshops involving key stakeholders will be held. In 2014, an ad-hoc intergovernmental conference will review the conclusions and recommendations of the workshops and seek formal support from States. The results of all this work will be presented at the 32nd International Conference in 2015.

I will conclude here, thanking you for your time and interest. I look forward to further exchange with you this week and in the final weeks before the International Conference.

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We urge Israel to let humanitarian aid enter Gaza through all crossing points: UK statement at the UN Security Council

Statement by UK Permanent Representative to the UN Ambassador Barbara Woodward at the UN Security Council meeting on the situation in the Middle East.

First, let me start by reaffirming the UK’s commitment to the principles enshrined in UN Security Council resolution 2334 which serves as a clear reinforcement of international support for a two-state solution. The suffering we have seen on, and since, the horrific attacks of October 7, underlines the importance, more than ever, of a diplomatic solution to this conflict which guarantees the safety and security of both the Israeli and Palestinian people. We call for the immediate release of all the remaining hostages, including the return of those who have died in captivity, and we are appalled by reports of sexual violence and abuse. The UK stands firm in its condemnation of these heinous acts. The best way to get the hostages out is to get a deal done. We also urge Israel to let humanitarian aid enter Gaza through all crossing points immediately and guarantee deconfliction for aid convoys and other humanitarian work. We echo the Secretary General’s tribute to UN workers who have tragically lost their lives in this conflict and we call upon Israel to ensure the protection of UN facilities and staff. The integrity of the UN and its ability to operate is paramount. It serves as a crucial lifeline for the many innocent civilians affected by this conflict.

Second, the UK remains deeply concerned by the indiscriminate firing of rockets towards Israeli population centres, as noted in the Secretary-General’s report. This must stop. We also note with concern the continuing construction of settlements in the Occupied Palestinian Territory, including East Jerusalem. We are clear: these settlements are illegal under international law. We reiterate our call on Israel to immediately and completely stop all settlement activities. We condemn the human rights abuses and incitement of violence against Palestinian communities in the West Bank, where the UK has taken action, in the form of sanctions, against a number of those individuals and groups responsible. We are also deeply concerned by Israel’s suspension of revenue transfers to the Palestinian Authority and the risks to correspondent banking relations. Such measures harm chances for peace, security and stability.

Finally, Mr President, as the UK has said throughout, a negotiated pause in the fighting that leads to a sustainable ceasefire, without a return to fighting, is the best way to secure the release of the hostages, enable a significant scaling up of much needed humanitarian aid and leads to a permanent settlement of this issue. There is now a deal on the table, endorsed by this Council in resolution 2735, to achieve those goals. The onus is on Hamas to accept it and end the suffering of the Palestinian people and the remaining hostages. We must then work towards a credible and irreversible pathway towards a two-state solution of Israel and Palestine, living side-by-side in peace and security for both nations and the wider region.

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