REFUGEES AND THE 1951 CONVENTION: AN INSIGHT INTO THE PROTECTION OF REFUGEES DURING ARMED CONFLICTS

Abstract

The Convention relating to the status of Refugees commonly referred to as the 1951 Refugees Convention is often viewed as the prayer and beacon of light to all refugees suffering amidst war torn conditions parallel to those exiting in Syria, Afghanistan etc. This begs the questions of what effect a situation of war or armed conflict has on the application of the 1951 Convention. A reading of the Convention shows that it does not appear to distinguish between wartime persecution and peacetime persecution. There is no qualification in Article 1 that demands the existence of national peace or war. Therefore, the Convention recognizes that persecution can be carried out in a multiplicity of ways, none of which is limited to a situation of war or peace.  The point of discussion is the area between the Convention’s requirement of persecution as an integral element of a person’s refugee status, and the existence of war or armed conflict, from which an individual has fled. What remedy, if any, is offered by the Convention in this regard? Given that the Convention does not account for violence as a factor creating refugees, what impact does the existence of a violent situation have on the ability of a person to avail international protection? In other words, does war operate as an automatic disqualification on a person’s ability to obtain refugee status? Finally, if international refugee law is found to be lacking in this regard, what recourse do victims of violence have under other areas of international law? 

Given the transformation in circumstances that force people to abandon their homes and seek the protection of the international community, the capability of the international law regime on this point is challenged. The classical definition of refugee is no longer sufficient to meet the exigencies of humanitarian crises that induce refugee flight. This research paper is concerned with examining the inadequacy of the current legal framework in situations of armed conflicts, and the ability of international law to reconcile modern refugee movements with the existing law relating to refugee protection.