Revisiting the Civilian and Humanitarian Character of Refugee Camps

This is a digital offprint for restricted use only | © 2014 Koninklijke Brill NV

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Refuge from Inhumanity? War Refugees and International

Humanitarian Law

Edited by

David James Cantor and Jean-François Durieux

LEIDEN | BOSTON


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Contents

Acknowledgements ixAbbreviations xNotes on Contributors xii

Part 1Introduction

1 Refuge from Inhumanity? Canvassing the Issues 3Jean-François Durieux and David James Cantor

Part 2Interpretive Guidance from ihl: Cross-Cutting Issues

2 The ‘War Flaw’ and Why It Matters 39Hugo Storey

3 Causation in International Protection from Armed Conflict 57Hélène Lambert

4 Expanding Refugee Protection through International Humanitarian Law: Driving on a Highway or Walking near the Edge of the Abyss? 79

Stéphane Jaquemet

Part 3Interpretive Guidance from ihl: Inclusion and Exclusion under the Refugee Convention

5 Persecution and the Nexus to a Refugee Convention Ground in Non-International Armed Conflict: Insights from Customary International Humanitarian Law 101

Vanessa Holzer

6 Inclusion of Refugees from Armed Conflict: Combatants and Ex-combatants 128

Eric Fripp


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Contents

7 Exclusion is Not Just about Saying ‘No’: Taking Exclusion Seriously in Complex Conflicts 155

Geoff Gilbert

Part 4Interpretive Guidance from ihl: Regional Definitions and Systems

8 The African War Refugee: Using ihl to Interpret the 1969 African Refugee Convention’s Expanded Refugee Definition 179

Tamara Wood

9 A Simple Solution to War Refugees? The Latin American Expanded Definition and its relationship to ihl 204

David James Cantor and Diana Trimiño Mora

10 Revisiting the Civilian and Humanitarian Character of Refugee Camps 225

Maja Janmyr

11 The (Mis)Use of International Humanitarian Law under Article 15(C) of the eu Qualification Directive 247

Céline Bauloz

12 What Protection for Persons Fleeing Indiscriminate Violence? The Impact of the European Courts on the eu Subsidiary Protection Regime 270

Evangelia (Lilian) Tsourdi

13 Of Autonomy, Autarky, Purposiveness and Fragmentation: The Relationship between eu Asylum Law and International Humanitarian Law 295

Violeta Moreno-Lax


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Contents

Part 5IHL Protections for Non-Return to Armed Conflict

14 Laws of Unintended Consequence? Nationality, Allegiance and the Removal of Refugees during Wartime 345

David James Cantor

15 The Scope of the Obligation Not to Return Fighters under the Law of Armed Conflict 373

Françoise J. Hampson

16 Non-Refoulement between ‘Common Article 1’ and ‘Common Article 3’ 386

Reuven (Ruvi) Ziegler

Part 6Wider Approaches to Protection of War Victims

17 Protection against the Forced Return of War Refugees: An Interdisciplinary Consensus on Humanitarian Non-refoulement 411

Jennifer Moore

18 Non-refoulement, Temporary Refuge, and the ‘New’ Asylum Seekers 433

Guy S. Goodwin-Gill

Bibliography 461 Index 485

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1 The law of neutrality is not included in international humanitarian law since its primary purpose is not humanitarian. For this reason, this chapter will exclude discussion of the laws of neutrality. See C. Greenwood, ‘Historical Development and Legal Basis’ in D. Fleck (ed), The Handbook of International Humanitarian Law (2nd edn OUP 2008) 11.

2 Article 2(4) of the Charter of the United Nations, 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (un Charter). See generally M. Janmyr, Protecting Civilians in Refugee Camps: Unable and Unwilling States, unhcr and International Responsibility (Martinus Nijhoff Publishers 2014).

3 There is no definition in general international law of the term ‘refugee camp’, nor is it men-tioned in the major international refugee law instruments. For the purposes of our current undertaking, throughout this chapter ‘refugee camps’ are broadly defined as spatially defined places aimed at sheltering and protecting refugees. For an example of a widely accepted operational definition, see NRC/Camp Management Project, Camp Management Toolkit (2008) 14.

Chapter 10

Revisiting the Civilian and Humanitarian Character of Refugee Camps

Maja Janmyr

Refugee camps are anomalous spaces in which several fields of law often converge. The intersection of different bodies of international law is perhaps most prominent in the standard known as the ‘civilian and humanitarian character of refugee camps’. This norm has in recent decades emerged as an important principle of international law, drawing on international refugee law (irl), international humanitarian law (ihl), the laws of neutrality1 and the un Charter.2 This chapter seeks to clarify the inter-relationship of ihl and irl in establishing and clarifying this principle. It asks: What is the ‘civilian and humanitarian character’ of refugee camps,3 and how does this concept fit in humanitarian law and refugee law?

Divided into two main parts, this chapter starts with a brief exploration of the historical development of the civilian and humanitarian character of refugee camps, then illustrates the role played by international humani-tarian law and refugee law in giving meaning to ‘civilian’ and ‘humanitar-ian’ as part of the concept. It particularly asks whether the meanings of these terms in international refugee law are direct imports, perversions, or simply vague imitations, of the corresponding terms in international humanitarian law.


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4 This is most clearly reflected in the preamble of the Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Refugee Convention) and the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, 1001 unts 45 (entered into force 20 June 1974) (1969 oau Convention).

5 For a discussion of general principles of international law, see M. Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (cup 2006).

6 For the legal value of acts of these organizations, see C. Lewis, ‘unhcr’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’ (2005)17 ijrl 67; J. Sztucki, ‘The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the unhcr Programme’ (1989) 1 ijrl 285; P. Sands et al, Bowett’s Law of International Institutions (Sweet and Maxwell 2001); M. Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 MPYUNL 73.

7 oau, ‘Khartoum Declaration of the OAU Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa’ (Khartoum, 13–14 December 1998); Council of the European Union, ‘Guidelines on Protection of Civilians in eu-led Crisis Management Operations’ (Brussels, 14 November 2003) psc Working Doc 14805/03 (Discussed by Italy in the Security Council in 2003, see unsc Verbatim Record (9 December 2003) un Doc S/pv.4877). See also unicef, ‘Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa’ (Cape Town, April 1997) 4; au, ‘Cairo Declaration: Africa-Europe Summit under the Aegis of the oau and the eu’ (3–4 April 2000) unicef, ‘Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Armed Groups’ (Paris, February 2007).

1 Origins of the Civilian and Humanitarian Character of Refugee Camps

The international community has recognised the importance of maintaining the peaceful and humanitarian character of asylum since the very inception of the modern refugee regime.4 The civilian and humanitarian character of refugee camps, then, appears to have sprung out of this fundamental standard. This principle5 developed distinctly through its promotion within the United Nations High Commissioner for Refugees’ (unhcr) Executive Committee, the un General Assembly and the un Security Council.6 In more recent years its development has taken place under the auspices of other fora.7 Outlined below are the developments of the principle within the unhcr and the un General Assembly and Security Council.

1.1 1950–1990Severe problems of militarization and insecurity have been a recurrent feature of many refugee camps for over a half-century. During the 1950s, 60s and 70s,


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8 See for example, J. Crisp, ‘Africa’s Refugees: Patterns, Problems and Policy Challenges’ (2000) 18 jcas 157; B. Rutinwa, ‘The End of Asylum? The Changing Nature of Refugee Policies in Africa’ (1999) 5 unhcr New Issues in Refugee Research Series, 4; M. Othman–Chande, ‘International Law and Armed Attacks in Refugee Camps’ (1990) 59 njil 153.

9 unga Resolution 2312 (XXII) (14 December 1967) UN Doc A/RES/2312(XXII) preamble.10 unhcr, ‘Report by Ambassador Felix Schnyder on Military Attacks on Refugee Camps

and Settlements in Southern Africa and Elsewhere’ (15 March 1983) un Doc EC/SCP/26. (Schnyder Report).

11 unhcr, ‘Schnyder Report’ (n 11).12 unhcr, ‘Informal Meeting of the Sub-Committee of the Whole on International

Protection on Military Attacks on Refugee Camps and Settlements in Southern Africa and Elsewhere held on Thursday, 28 April 1983’ (6 June 1983) un Doc EC/SCP/29. See also Letter from Ambassador Felix Schnyder to the High Commissioner, attached to unhcr, ‘Military Attacks on Refugee Camps and Settlements in Southern Africa’ (1 October 1982) un Doc EC/SCP/23.

the majority of refugees fled in the context of liberation and independence wars, and many liberation movements were allowed to pursue their armed struggles from bases in refugee camps in the territory of sympathetic neigh-bouring States.8 From this followed that refugee camps often became prime objects of attack by colonial powers.

While the un General Assembly unanimously adopted the United Nations Declaration on Territorial Asylum in 1967, which recognised that the grant of asylum is ‘a peaceful and humanitarian act and (…), as such, cannot be regarded as unfriendly by another State’,9 the status of refugee camps first really emerged as a topic of concern within the international community in relation to armed attacks against refugee camps in the late 1970s and early 1980s. The severity of the matter thrust the topic onto the agenda of unhcr.

In 1983, the High Commissioner mandated Ambassador (and former High Commissioner) Felix Schnyder to undertake a review of military attacks on refugee camps and make recommendations to the Executive Committee.10 Following this so-called Schnyder Report,11 a series of protracted and politi-cally sensitive discussions took place within the Executive Committee before the Committee could issue its first important conclusion.12 Deliberations largely concentrated on whether the primary onus was on host States to ensure the civilian and humanitarian character of refugee camps, or on neighbouring States to abstain from attacking them. Host States advocated a categorical con-demnation of attacks under all circumstances, while many Western States argued that camps sheltering armed elements might constitute legitimate military objectives.


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13 See for instance unga Resolution 42/109 (7 December 1987) UN Doc A/RES/42/109; UNGA Resolution 43/117 (8 December 1988) UN Doc A/RES/43/117; UNGA Resolution 45/140 (14 December 1990) UN Doc A/RES/45/140. See also unhcr excom Conclusions No 27 (XXXIII) ‘Military Attacks on Refugee Camps and Settlements in Southern Africa and Elsewhere’ (1982); No 48 (XXXVIII) ‘Military or Armed Attacks on Refugee Camps and Settlements’ (1987); No 72 (XLIV) ‘Personal Security of Refugees’ (1993); No 77 (XLVI) ‘General’ (1995); No 84 (XLVIII) ‘Refugee Children and Adolescents’ (1997); No 87 (L) ‘General’ (1999); No 94 (LIII) ‘Civilian and Humanitarian Character of Asylum’ (2002); No 99 (LV) ‘General’ (2002); No 107 (LVIII) ‘Children at Risk’ (2007).

The protracted debate eventually led to a compromised Executive Committee Conclusion in 1987, expressly recognizing that attacks against refugee camps cannot be justified, but predicating this prohibition on the assumption that refugee camps and settlements had an ‘exclusively civilian and humanitarian character’. Paragraph 4(a) of Conclusion No. 48 (1987) pro-vides that

[r]efugees in camps and settlements have, together with the basic rights they enjoy, duties deriving from the refuge and protection granted or afforded to them by the country of refuge. In particular, they have duties to (…) abstain from any activity likely to detract from the exclusively civilian and humanitarian character of the camps and settlements.

Paragraph 4(b) explicitly provides that ‘[i]t is essential that States of refuge do all within their capacity to ensure that the civilian and humanitarian character of such camps and settlements is maintained’. Explicitly mentioning States’ responsibilities under international humanitarian law, Conclusion No. 48 essentially coined the principle of the civilian and humanitarian character in refugee camps. Since this Conclusion, the Committee has repeatedly empha-sised the significance of maintaining the civilian and humanitarian character of refugee camps, and its importance has also been noted by the un General Assembly, which on repeated occasions called upon all States to observe the principles embedded therein.13

1.2 1990 – TodayConcern for the security of refugee camps reached new heights at the end of the Cold War, when it became evident that despite increasing international attention, many refugee camps continued to suffer from insecurity and milita-rization. In the 1990s, unhcr initiated a range of practical measures aimed at maintaining the civilian and humanitarian character of refugee camps,



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14 The ‘ladder’ focuses largely on preventative action, but also recognizes the need in some cases to deploy regional or international police and/or military forces, such as international peacekeepers. The ‘ladder of options’ is described in unhcr, ‘Security and the Civilian and Humanitarian Character of Refugee Camps and Settlements’ (1999) un Doc EC/49/SC/INF.2. See also unsc Verbatim Record (10 November 1998) un Doc S/PV.3942.

15 See, for instance, unhcr, ‘Niebla Declaration on Revitalizing the Protection of Refugees’ (1 December 2001); unhcr, ‘International Cooperation to Protect Masses in Flight (inter alia mass influx, burden and responsibility sharing, security and additional instruments)’ Ministerial Meeting of States Parties to the 1951 Convention and/or its 1967 Protocol relat-ing to the Status of Refugees (13 December 2001); unhcr, ‘UNHCR Regional Symposium on Maintaining the Civilian and Humanitarian Character of Asylum, Refugee Status, Camps and Other Locations’ (26–27 February 2001) UN Doc EG/GC/01/9; unhcr, ‘The Civilian Character of Asylum: Separating Armed Elements from Refugees’ (19 February 2001) un Doc EC/GC/01/5; unhcr, ‘Agenda for Protection’ (26 June 2002) un Doc A/ac.96/965/Add.1.

16 unhcr excom Conclusion No 94 (LIII) ‘Civilian and Humanitarian Character of Asylum’ (2002), preamble.

culminating in the development of the ‘ladder of options’ in 1999.14 In 2002, following consensus on several related standards, the Committee followed up on its prominent Conclusion No. 48.15 Conclusion 94 on the civilian and humanitarian character of asylum aimed at offering further guidance as to the manner in which the civilian and humanitarian character of refugee camps could be maintained. Referring to irl, ihl and international human rights law, its Preamble reiterates that ‘refugee camps and settlements should have an exclusively civilian and humanitarian character’ and that ‘the grant of asylum is a peaceful and humanitarian act which should not be regarded as unfriendly by another State’.16 The Preamble also lists a number of actions that would ‘jeopardize the civilian and humanitarian character of asylum’. These include:

the presence of armed elements in refugee camps or settlements; recruit-ment and training by government armed forces or organized armed groups; the use of such camps, intended to accommodate refugee popu-lations on purely humanitarian grounds, for the internment of prisoners of war; as well as other forms of exploitation of refugee situations for the purpose of promoting military objectives …

unhcr also issued important soft law material promoting the civilian and humanitarian character of refugee camps. Its 1999 Protection Guidelines on Refugee Security, for example, emphasise that ‘[a]s asylum is a humanitarian


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17 Specifically, ‘[t]he use of the military contingents to provide assistance and security to areas where refugees are accommodated is inherently incompatible with the humanitar-ian and civilian character of refugee protection’. unhcr, ‘Protection Guidelines Relating to Refugee Security’ (1999) Doc OPS 4 Kosovo, paras 2; 5.

18 See unhcr, ‘Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum’ (Geneva, 2006); unhcr, ‘Handbook for Emergencies’ (Geneva, 2007). See also unhcr, ‘Operational Protection in Camps and Settlements: A Reference Guide of Good Practices in the Protection of Refugees and Other Persons of Concern’ (Geneva, 2006); unhcr, ‘Agenda for Protection’ (n15); unhcr, ‘UNHCR Manual on Security of Persons of Concern’ (Geneva, 2011).

19 unga Resolution 50/152 (21 December 1995) UN Doc A/RES/50/152; unga Resolution 52/103 (12 December 1997) UN Doc A/res/52/103; unga Resolution 53/125 (9 December 1998) un Doc A/RES/53/125; unga Resolution 54/147 (17 December 1999) UN Doc A/RES/54/147; unga Resolution 55/74 (4 December 2000) UN Doc A/RES/55/74; unga Resolution 56/166 (19 December 2001) UN Doc A/RES/56/166; unga Resolution 58/169 (22 December 2003) UN Doc A/RES/58/169; unga Resolution 60/128 (16 December 2005); un Resolution 59/172 (20 December 2004) UN Doc A/RES/59/172.

20 See generally, F. Terry, Condemned to Repeat? The Paradox of Humanitarian Action (Cornell University Press 2002). See also unsc, ‘Report of the Secretary General of the United Nations on Security in the Rwandese Camps’ (1994) un Doc S/1994/1308, para 30.

21 See unsc Resolution 1208 (19 November 1998) un DocS/res/1208; unsc Resolution 1265 (17 September 1999) un Doc S/RES/1265; unsc Resolution 1296 (19 April 2000)

institution, military activities of any kind are incompatible with refugee status’ and that recruitment from among refugees for participation in armed hostili-ties must be prohibited, since ‘[t]he recruitment of, or volunteering by refugees for participation in armed activities contradicts the humanitarian and peace-ful nature of the institution of asylum’.17 More recent initiatives include the 2006 Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum and the 2007 Handbook for Emergencies.18

While the un General Assembly explicitly increased its promotion of the principle from the mid-1990s onwards,19 the most important development dur-ing this period was unquestionably the involvement of the un Security Council. For the first time in history, prompted by the vast scale of the militarised refu-gee camps for Rwandan refugees in Zaïre (today the Democratic Republic of the Congo),20 unhcr sought the involvement of the Council. The Council became increasingly engaged with the issue: not only did it include refugee camp security in its ‘protection of civilians’ concept, but more importantly, it issued a number of resolutions aimed at firmly cementing the principle of the civilian and humanitarian character of refugee camps as such. The Council’s involvement is evidenced most expressly in Resolutions 1208 (1998), 1265 (1999), 1296 (2000) and 1674 (2006), and the issue has also been the focus of a number of reports by the un Secretary-General.21



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A key development occurred when the Council recognised that a breach of the refugee camps’ civilian and humanitarian character may develop into threats against international peace and security.22 This view is supported by the Council’s concrete work on specific situations: the civilian and humanitar-ian character of refugee camps is referred to in pronouncements concerning women, peace and security,23 in those related to protection in armed conflict more generally, and in country- or region- specific resolutions such as those on Chad, the Central African Republic and the sub-region.24 Throughout its work, the Council has frequently emphasised that the civilian and humanitarian character of refugee camps draws on a number of different fields of interna-tional law, inter alia international humanitarian and refugee law.25

UN Doc S/RES/1296; unsc Resolution 1674 (28 April 2006) UN Doc S/RES/1674. See also unsc, ‘Report of the Secretary General: The causes of conflict and the promotion of dura-ble peace and sustainable development in Africa’ (13 April 1998) UN Doc S/1998/318; unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (8 September 1999) UN Doc S/1999/957; unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (30 March 2001) UN Doc S/2001/331; unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (26 November 2002) UN Doc S/2002/1300; unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (28 May 2004) UN Doc S/2004/431; unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (28 November 2005) UN Doc S/2005/740; unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (29 May 2009) UN Doc S/2009/277; unsc, ‘Report of the Secretary-General on children and armed conflict in Chad’ (3 July 2007) UN Doc S/2007/400; unsc, ‘Report of the Secretary-General on children and armed conflict in Chad’ (7 August 2008) UN Doc S/2008/532. The issue has also been brought up in a number of Security Council meetings: unsc Verbatim Records (21 May 1997) UN Doc S/PV.3778; unsc Verbatim Records (29 September 1998) UN Doc S/PV.3932; unsc Verbatim Records (10 November 1998) UN Doc S/PV.3942; unsc Verbatim Records (26 July 1999) UN Doc S/PV.4025.

22 unsc Resolution 1208 (19 November 1998) UN Doc S/RES/1208, preamble.23 unsc Resolution 1325 (31 October 2000) UN Doc S/RES/1325, para 12. See also unsc

Resolution 1889 (5 October 2009) UN Doc S/RES/1889.24 unsc Resolution 1834 (24 September 2008) UN Doc S/RES/1834; unsc Resolution 1861

(14 January 2009) UN Doc S/RES/1861; unsc Resolution 1922 (12 May 2010) UN Doc S/RES/1922; unsc Resolution 1923 (25 May 2010) UN Doc S/RES/1923. It was, however, not the first example of the Security Council implementing the principle in a concrete case. On East Timor, see unsc Resolution 1272 (25 October 1999) UN Doc S/RES/1272; unsc Resolution 1319 (20 September 2000) UN Doc S/RES/1319. On Burundi, see unsc Resolution 1286 (19 January 2000) UN Doc S/RES/1286.

25 unsc Resolution 1208 (19 November 1998) UN Doc S/RES/1208 preamble; unsc, ‘Statement by the President of the Security Council’ (2 June 2000) UN Doc S/PRST/2000/1.


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26 This principle is a norm of customary international law, and is codified in Articles 48 and 52(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 unts 3 (entered into force 7 December 1978) (Additional Protocol I). See generally J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (CUP 2005) 25. See also un Charter, Art 2(4).

As this section has shown, the principle of the civilian and humanitarian character of refugee camps has evolved into a paramount standard of protec-tion for refugees in camps. While the un Security Council and unhcr’s Executive Committee repeatedly refer to the applicability of both ihl and irl, it remains unclear how these fields of law interact in the current context. Any further understanding of the concept of the civilian and humanitarian charac-ter of refugee camps thus requires defining the terms ‘civilian’ and ‘humanitar-ian’. At the outset it appears that international refugee law has been influenced by international humanitarian law, but the usage of these terms has proven to bring forth both legal and practical difficulties. These challenges are explored further in the following Section.

2 Exploring the Meaning of ‘Civilian’ and ‘Humanitarian’ in Refugee Law: Direct Imports, Perversions, or Vague Imitations of their ihl ‘Siblings’?

2.1 ‘Civilian’ in the ‘Civilian and Humanitarian Character’ of Refugee Camps

The ‘civilian’ character of refugee camps and, more broadly, of asylum, is perhaps the clearest example of international refugee law borrowing princi-ples of international humanitarian law. On the premise that persons not (or no longer) taking a direct part in hostilities must be protected and treated humanely, the cardinal principle of international humanitarian law is the ‘principle of distinction’ between combatants and civilians, which provides for the protection of civilian populations and objects from military attacks.26 In this same manner, the principle of the civilian and humanitarian character of refugee camps requires that (civilian) refugees be separated from ‘armed ele-ments’ and ‘combatants’. This section first explains the terms ‘civilian’ and ‘combatant’ from an ihl perspective, then considers how these same concepts are used in the context of maintaining the civilian and humanitarian character of refugee camps, before discussing these findings in relation to the refugee camp as a ‘civilian object’ or, conversely, a ‘military objective’.



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27 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 unts 287 (entered into force 21 October 1950) (Fourth Geneva Convention) Art 4. In the Celibici case, however, the International Criminal Tribunal for the Former Yugoslavia (icty) found that civilians can be considered as protected persons under Article 4 despite having the same nationality as the power in whose hand they find themselves. See Prosecutor v Zejnil Delalic et al. (Celebici case) (Judgment) icty −96-21-T (16 November 1998) para 263.

28 Read together with Article 4(a) of the Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Third Geneva Convention) and Article 43 of Additional Protocol I.

2.1.1 Distinguishing between ‘Civilians’ and ‘Combatants’ in International Humanitarian Law

The term ‘civilian’ is employed in the law of international armed conflict to distinguish those deserving protection from hostilities from ‘combatants’. Defining ‘civilian’ is nevertheless not the easiest task. The Fourth Geneva Convention of 1949, while entirely dedicated to the protection of the civil-ian population, contains no definition of ‘civilian’. Protected persons are those who, at a given moment and in any manner whatsoever, find them-selves 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.27 Nevertheless, in 1977, Article 50 of Additional Protocol I (‘Definition of civilians and civilian population’) clarified the term.28 Article 50 (1) provides that civil-ians are persons who are not (1) members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces; (2) members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organised resistance movements, fulfil the four conditions required for combatant status. Article 50 also states that ‘[i]n case of doubt whether a person is a civilian, that person shall be con-sidered to be a civilian’.

Conversely, the term ‘combatant’ is restricted to situations of international armed conflict and confers a limited protected status on those who take up arms. A combatant is either a member of the armed forces of a Party to the conflict or a member of another armed group belonging to a Party to the con-flict, provided that such a group fulfils the following conditions: a. that of being commanded by a person responsible for his subordinates; b. that of having a fixed distinctive sign recognizable at a distance; c. that of carrying arms openly; d. that of conducting their operations in accordance with the laws and


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29 Article 4(a) of the Third Geneva Convention.30 Additional Protocol I, Arts 43; 44. The crossing of an international border does not change

their status in international law as long as they are involved in military activities and not captured by the enemy State or in the power of a neutral State.

31 However, it should be noted that it is increasingly difficult to determine who is to be con-sidered a combatant under international humanitarian law. See Knut Ipsen, ‘Combatants and Non-Combatants’, in Fleck (n2).

32 However, Article 4(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Additional Protocol II) provides that: ‘[a]ll persons who do not take a direct part or who have ceased to take part in

customs of war.29 In recognition of situations in which it is not always possible for combatants to distinguish themselves from the civilian population, Additional Protocol I clarifies the concept of combatant further. Article 43 defines combatants as ‘[m]embers of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention)’, while Article 44 provides that the status of combatant will be retained if the person carries his arms openly ‘during each military engage-ment, and…during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate’.30

While the definitions of ‘civilian’ and ‘combatant’ are relatively clear-cut in international armed conflict,31 the difficulties of international refugee law of applying international humanitarian law terms to the context of militarised refugee camps is partly explained by the fact that the traditional dichotomy between combatant and civilian, as found in the law of international armed conflict, is not replicated in non-international armed conflict. Because the rules of non-international armed conflict do not recognise combatant status, they do not explicitly distinguish between combatants and civilians.32

2.1.2 Applying ‘Civilian’ and ‘Combatant’ as Categories of Persons for the Purposes of Maintaining the Refugee Camp’s Civilian and Humanitarian Character

It is even more complicated to determine which categories of persons are to be distinguished in order to maintain the civilian and humanitarian character of refugee camps. In fact, it appears as though the understanding of the terms ‘civilian’ and ‘combatant’ in this context has changed over time and developed in tune with the principle itself. Further complicating this distinction is the introduction of the term ‘armed element’, which, as we will see below, also has diverse meanings in the current context.



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hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there are no survivors’. Common Article 3 also clarifies that protected persons are ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria’.

33 Emphasis added. unsc Resolution 1208 (19 November 1998) UN Doc S/RES/1208, para 4. See also unsc Verbatim Records (21 January 1999) UN Doc S/PV.3968; unsc Verbatim Records (16 September 1999) UN Doc S/PV.4046,; unsc Verbatim Records (19 April 2000) UN Doc S/PV.4130; unsc Verbatim Records (23 April 2001) UN Doc S/PV.4312; unsc Verbatim Records (21 November 2001) UN Doc S/PV.4424; unsc Verbatim Records (10 December 2002) UN Doc S/PV.4660; unsc Verbatim Records (20 June 2003) UN Doc S/PV.4777; unsc Verbatim Records (14 December 2004) UN Doc S/PV.5100; unsc Verbatim Records (26 June 2009) UN Doc S/PV.6151; unsc Verbatim Records (22 November 2010) UN Doc S/PV.6427.

34 Emphasis added. Also the regional meeting under the auspices of unhcr’s Global Consultations referred to the ‘[i]dentification, screening and separation of non-refu-gees’ (unhcr, ‘The Civilian Character of Asylum’ (n15) para 6; unhcr, ‘Regional Symposium on Maintaining the Civilian and Humanitarian Character of Asylum, Refugee Status, Camps and Other Locations’ (Pretoria, 30 May 2001) UN Doc EC/GC/01/9, para 3(b).)

Confusion as to the categories to be distinguished in refugee camps appeared to be particularly accentuated at the dawn of the new millennium. The un Security Council, for instance, stressed the need to separate refugees from ‘other persons who do not qualify for international protection afforded refugees or otherwise do not require international protection’,33 while unhcr’s Global Consultations on International Protection advocated for a ‘clear distinction’ between ‘refugees on the one hand, and armed elements and others not deserv-ing of protection under international refugee instruments on the other’.34 This suggests that in order for refugee camps to maintain their civilian and humani-tarian character, it was not (only) important to distinguish between civilians and combatants, but also to distinguish between refugees and others not deserving/requiring international protection. Only (civilian) refugees were to be sheltered in the camps. Whether or not this is still the case today is difficult to determine, as no similar references have been made in recent years.

Early references to the categories to be distinguished also appeared to use the concepts ‘armed element’ and ‘combatant’ interchangeably. The un Secretary General and the Security Council frequently referred to the ‘separation of civilians and armed elements’ without defining either


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35 unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (30 March 2001) UN Doc S/2001/331, paras 28–47; unsc, ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (26 November 2002) UN Doc S/2002/1300, paras 31–40. See also Annex to unsc, ‘Statement by the President of the Security Council’ (15 March 2002) UN Doc S/PRST/2002/6.

36 unhcr, ‘The Civilian Character of Asylum’ (n 15) para 11.37 Interestingly, the Global Consultations also make reference to peculiar undefined con-

cepts such as ‘former armed elements’ and ‘fighters’. Following up on the Global Consultations, unhcr’s Agenda for Protection concentrates on the need to separate refu-gees from ‘armed elements’, without defining this term any closer. See unhcr, ‘The Civilian Character of Asylum’ (n 15) paras 8; 15; 18. See also unhcr, ‘Agenda for Protection’ (n 15).

38 unhcr excom Conclusion No 94 (LIII) ‘Civilian and Humanitarian Character of Asylum’ (2002) n 1.

term – consequently implying that armed elements may never be civil-ians.35 During unhcr’s 2001 Global Consultations, ‘armed element’ was defined using the ‘generic criteria applicable to combatants in interna-tional armed conflict’, hence applied to any person who is

a member of an armed or military organization or establishment, whether regular or irregular, or has been participating actively in military activities and hostilities, or has undertaken activities to recruit or train military personnel, or has been in a command or decision-making position in an armed organization or establishment, or has arrived in the receiving country carrying arms or in military uniform, or having presented himself in the receiving country as a civilian, assumes or shows the intention to assume any of the above attributes.36

These armed elements, the Consultations noted, are to be separated, disarmed and interned whenever they crossed the border together with refugees and other civilians.37

An entirely different message was conveyed in 2002, when unhcr’s Executive Committee issued Conclusion No. 94 and distinguished between ‘armed elements’ and ‘combatants’. ‘Armed elements’ generically refers to ‘combatants as well as civilians carrying weapons’, while the term ‘combatant’ covers ‘persons taking active part in hostilities in both international and non-international armed conflict who have entered a country of asylum’.38 It is unclear how the Executive Committee’s understanding of ‘active part in



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39 For an overview of what ‘direct participation in hostilities’ means under ihl, see N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (icrc 2009).

40 unhcr excom Conclusion No 94 (LIII) ‘Civilian and Humanitarian Character of Asylum’ (2002) para (b).

41 Ibid, para (d).42 unhcr, ‘Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum,

Conclusions and Preliminary Issues Raised’ (Geneva, 9–11 June 2004) para b(7).43 R. da Costa, ‘Maintaining the Civilian and Humanitarian Character of Asylum’ (2004)

unhcr Legal and Protection Policy Research Series <http://www.unhcr.org/40ebf51b4 .html> accessed 1 March 2014.

44 unhcr excom Conclusion No 99 (LV) ‘General’ (2004) para (n).

hostilities’ relates to international humanitarian law.39 Contrary to what was suggested in the Global Consultations, this Conclusion also implied that while the presence of armed elements may jeopardise the civilian and humanitarian character of refugee camps, armed elements need only to be disarmed, not separated.40 Combatants, however, were to be identified, separated and interned.

Perhaps realizing that the terms ‘armed element’ and ‘combatant’ were being used loosely, however, Conclusion No. 94 also called upon unhcr to convene a meeting of experts inter alia in order to clarify relevant procedures and standards with regard to the separation of combatants with a view to maintaining the civilian and humanitarian character of refugee camps.41 This Experts’ Roundtable took place in 2004, and, disappointingly, the understand-ing of these concepts was really not developed any further – there was general consensus to distinguish between ‘armed element’ and ‘combatant’ in the same manner as in Conclusion No. 94.42 This solution had also been advocated by one of the background documents, which argued that ‘[t]his is an advan-tage as it allows one to refer to combatants (i.e., “fighters”), regardless of whether they are involved in an international or non-international armed conflict – a fundamental distinction in IHL but which would be too restrictive for our purposes’.43 As in Conclusion No. 94, the Experts’ Roundtable also rec-ommended that all armed elements must be disarmed even if they need not be separated or interned, while all combatants must be disarmed, separated and interned. These views were also mirrored that same year in Executive Committee Conclusion No. 99.44

When unhcr released its Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum in 2006, it was once again recognised that the term ‘combatant’ as used in the current context does not correspond

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45 unhcr, ‘Operational Guidelines’ (n 18) 9 n3.46 Ibid 17.47 Ibid 17. This is also stressed in unhcr, ‘Operational Protection’ (n 18) 42–43.48 unhcr, ‘Operational Protection’ (n 19) 43. For a discussion of this definition and icrc’s

role in its development, see unhcr/da Costa, ‘Maintaining the Civilian’ (n 43) 11.49 unhcr, ‘Operational Protection’ (n 18) 43.

to the definition of ‘combatant’ in international humanitarian law.45 The defi-nition had also evolved and no longer corresponded with the definition pro-vided by the Experts’ Roundtable and recent Executive Committee Conclusions. Explaining that ‘for the purpose of ensuring the civilian and humanitarian nature of asylum, the emphasis must be on identifying all individuals who, because of their involvement with armed activities, pose a threat to refugees, and for that reason need to be separated’, a much more detailed definition was provided. The Guidelines define a ‘combatant’ as

any member, man or woman, of regular armed forces or an irregular armed group, or someone who has been participating actively in military activities and hostilities, or has undertaken activities to recruit or train military personnel, or has been in a command or decision-making posi-tion in an armed organization, regular or irregular, and who find them-selves in a host State.46

As for the term ‘armed element’, the Guidelines mirror the definition provided by the Experts’ Roundtable and the Executive Committee. Again, it is empha-sised that all armed elements must be disarmed, while only combatants need to be separated and interned.47

In 2006, unhcr also issued its Operational Protection in Camps and Settlements. The definition of ‘combatant’ in this document corresponds directly to the above mentioned definition of ‘armed element’ as understood during the Global Consultations in 2001.48 Interestingly, it also introduces the term ‘armed civilians’ to describe ‘those who enter the host country or camp with weapons amongst their household goods but who have not been a party to the conflict’.49 Conversely, ‘armed elements’, in this document, refers to ‘a mixed influx situation of combatants as well as armed civilians’. While the dif-ference in meaning between the concepts as understood in ihl and as applied in the context of the civilian and humanitarian character of refugee camps can partly be explained by the different aims underpinning the use of terms – ihl aims to convey a legal status but irl aims to be functional and operational – the usage of terms in the current context has been entirely inconsistent.



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50 Military objectives are ‘limited to those objects which by their nature, location, purpose of use make an effective contribution to military action and whose partial or total destruc-tion, capture or neutralisation, in the circumstances ruling at the time, offers a definitive military advantage’. The definition of military objectives is set forth in Article 52(2) of Additional Protocol I and is considered to be customary international law. It has been incorporated in treaty law applicable in non-international armed conflicts, notably in Article 1(f) of the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 823 UNTS 231 (entered into force 24 April 1972). See Henckaerts and Doswald-Beck (n 26) 29 ff.

51 Henckaerts and Doswald-Beck (n 26) 34 ff.52 S. Jaquemet, ‘Under What Circumstances Can a Person Who Has Taken an Active Part in

the Hostilities of an International or a Non-International Armed Conflict Become an Asylum Seeker?’ (2004) unhcr Legal and Protection Policy Research Series <http://www .refworld.org/docid/413c8b444.htm> accessed 1 March 2014, 32–33.

53 unhcr, ‘Schnyder Report’ (n 11) para 9.

The multitude of terms and meanings is presumed to have caused great confu-sion in the field, making the distinctions difficult to apply in practice.

2.1.3 Distinguishing between ‘Civilian Objects’ and ‘Military Objectives’Under international humanitarian law, armed attacks may only be directed against military objectives,50 and civilian objects are considered to be all objects that are not military objectives. From the perspective of international humanitarian law, then, the refugee camp, given that it is for refugee civilians, should be presumed to be civilian as it is not meant for military purposes.51 This presumption is arguably maintained even when the refugee camp is located in places where military activities are carried out, such as in border areas.52 In fact, the Schnyder Report even proposed that refugee camps be afforded protection in neutral zones analogous to that defined in the Fourth Geneva Convention and Additional Protocols I and II, and that refugee camps should receive protection similar to that accorded Red Cross Hospitals under the Geneva Conventions.53 However, if a refugee camp is used for military pur-poses, it risks becoming a legitimate military objective, as historically argued by colonial States struggling against liberation movements based in refugee camps on the territories of neighbouring States.

Exactly when a prima facie civilian refugee camp becomes a legitimate mili-tary objective is, however, not entirely clear. In times of war it is inevitable that individuals belonging to the combatant category become intermingled with the civilian population. Importantly, however, Additional Protocol I provides that, ‘in case of doubt whether an object which is normally dedicated to civil-ian purposes, such as a place of worship, a house or other dwelling or a school,

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54 Additional Protocol I, Art 52(3).55 C. Pilloud et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva

Conventions of 12 August 1949 (icrc 1987) 612.56 The Operational Guidelines on Maintaining the Civilian and Humanitarian Character of

Asylum state that the militarization of a refugee camp is defined as ‘…the continuing occurrence of military or armed attacks and other threats to the security of refugees, including the infiltration and presence of armed elements in refugee camps and settle-ments, and the forced recruitment of refugees from the camps. The use by the host State of its regular military personnel for the protection of refugee camps and settlements does not constitute militarization’. unhcr, ‘Operational Guidelines’ (n 18) 18.

57 Greenwood (n 2) 11.

is being used to make an effective contribution to military action, it shall be presumed not to be so used’.54

The presence of small numbers of armed elements does not, therefore, deprive a refugee camp of its civilian character. In such cases, icrc has con-firmed that as long as the armed elements are not regular units of a consider-able size, the civilian character of a population is not changed.55 This seems to suggest that a camp which has lost its civilian and humanitarian character for the purposes of international refugee law will not necessarily have lost its civil-ian character under international humanitarian law. Conversely, while the presence of the host State’s regular military personnel may undermine the refu-gee camp’s civilian character under international humanitarian law, unhcr seems to suggest that such a presence would not constitute militarization, and thus would not constitute a threat to the camp’s civilian and humanitarian character.56

2.2 ‘Humanitarian’ in the Civilian and Humanitarian Character of Refugee Camps

It is at the outset difficult to imagine a more humanitarian space than that of the refugee camp, the foremost purpose of which is to provide refugees with tempo-rary shelter, assistance, and protection until they are voluntarily repatriated to their country of origin, locally integrated in the host State, or resettled to third countries. The term ‘humanitarian’ is widely used to refer to the promotion of human welfare. How, then, does this concept of ‘humanitarian’ in international refugee law relate to ‘humanitarian’ in international humanitarian law?

The term ‘international humanitarian law’ does not appear in the Geneva Conventions of 1949 and is of relatively recent origin.57 Within the specialised legal language, ‘humanitarian’ is used when referring to the set of rules designed to regulate the treatment of the individual in international armed conflict. The term has also been used in a broader sense to imply the



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58 See J.A. Gutteridge, ‘The Geneva Conventions of 1949’ (1949) BYBIL 294,300; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v us) [1986] ICJ Rep 14, 114.

59 T. Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’ (2000) 94 AJIL 78; A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11 EJIL 187. See also Corfu Channel Case (uk v Albania) [1949] ICJ Rep 4, 22; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v us) [1986] icj Rep 14, 218; icty, Prosecutor v Martic (Review of the Indictment Pursuant to Rule 61) IT-95-11-R61(13 March 1996) para 13; Prosecutor v Furundzija (Judgment) IT-95-17/1-T (10 December 1998) para 137.

60 See B. Simma, ‘The Contribution of Alfred Verdross to the Theory of International Law’ (1995) 6 EJIL 38.

61 See, for instance, Q. Wright, ‘The Corfu Channel Case’ (1949) 43 AJIL 491 (‘The opinion is notable for the extent to which the court relied upon broad principles of law, apparently deemed to be self-evident and stated without citation of precedent or authority. It is also notable that these principles referred to rights of humanity…’). To fill protection gaps, icrc has nevertheless engaged in an exercise of identifying ‘fundamental standards of humanity’. See Henckaerts and Doswald-Beck (n 26); unchr, ‘Promotion and Protection of Human Rights: Fundamental Standards of Humanity’ (2006) UN Doc E/CN.4/2006/87.

62 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention relative to the Treatment of Prisoners of War,

protection of human beings in situations of violence, and thus not only in cases where international humanitarian law would apply. The common denominator of both international humanitarian law and refugee law appears to be the principle of humanity, from which the concept of ‘humanitarian’ for the purposes of international humanitarian law presumably stems. Common Article 3 of the Geneva Conventions requires the observance of certain funda-mental rights, and the International Court of Justice has described this article as a reflection of ‘elementary considerations of humanity’.58 International law scholars and others have long attempted to give specific meaning to principles of humanity, or elementary considerations of humanity, and their exact con-tents are subject to much debate.59 While the concept of humanity in interna-tional legal thought has a lengthy lineage,60 it is often presented as self-evident, in no need of explanation.61

The principle of humanity is nevertheless understood to be embedded within the so-called Martens clause, found in the Preamble to the Hague Conventions on the Laws and Customs of War on Land, and restated in the Geneva Conventions of 1949 and their Additional Protocols.62 Article 1(2) of Additional Protocol I, for instance, reads: ‘[i]n cases not covered by this


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12 August 1949, 75 UNTS 287 (entered into force 21 October 1950); Fourth Geneva Convention, Art 158; Additional Protocol I, Art 1(2); Additional Protocol II, preamble; para 4. See generally H. Strebel, ‘Martens Clause’ (1982) 3 EPIL 252; Meron (n 59) 78–89.

63 R. Alleweldt, ‘Preamble to the 1951 Convention’, in A. Zimmermann et al (eds), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (OUP 2010) 238.

Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The purpose of this clause appears not only to confirm the continued applicability of customary international law, but also to prevent undertakings which might otherwise be justified by the principle of military necessity. The previously mentioned rule of distinction is an example of where the idea of humanity comes sharply into focus. As such, ‘humanity’ and ‘humanitarian’ in ihl focus on the idea that humankind should be treated humanely in all circumstances, which involves saving lives and alle-viating suffering.

A different meaning of this concept is found in international refugee law, where the term is firmly embedded. Ever since the inception of the asylum regime, the international community has emphasised the provision of asy-lum as a peaceful and humanitarian act, one that should not be regarded as unfriendly by other States. This seems to suggest that the term ‘humanitar-ian’ in international refugee law is to be understood first and foremost in the sense of ‘non-political’. The drafting history of the Refugee Convention indeed reveals that States negotiating the Convention were acutely aware that the grant of asylum had the potential to be a source of tension between the country of origin and the host States. Paragraph 5 of the Convention’s Preamble therefore reflects a humanitarian approach to refugee protection by ‘[e]xpressing the wish that all States, recognizing the social and humani-tarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States (…)’. The Preamble of the Refugee Convention assumes that all States recognise the social and humanitarian nature of the refugee problem, and expresses the wish that this problem should not become a cause of tension between States. The Commentary to the Refugee Convention develops this notion further and explains that the underlying idea is that receiving refu-gees is seen as a humanitarian act rather than a political measure.63 By the same token, Article 2 of the unhcr Statute provides that ‘[t]he work of the High Commissioner shall be of an entirely non-political character; it



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64 Statute of the Office of the United Nations High Commissioner for Refugees, unga Resolution 428 (V) annex, 5 UN gaor Supp. (No. 20) 46, UN Doc A/1775 (December 1950) Art 2.

65 L.W. Holborn, Refugees: A Problem of Our Time: The Work of the United Nations High Commissioner for Refugees 1951–1972 (vol 1, Scarecrow Press 1975) 89.

66 Alleweldt (n 63) 238.67 Ibid 240.

shall be humanitarian and social (…)’.64 As Holborn explains, the High Commissioner must ‘…minister to the human needs of refugees without taking sides in the political controversies that made them refugees’.65

That ‘humanitarian’ within international refugee law also has a wider mean-ing implying protection becomes evident in the Commentary’s explanation that ‘…the reference to the humanitarian nature of the refugee problem indi-cates (…) that the 1951 Convention was concluded not only to tackle a difficult problem of inter-State relations, but also in order to take concrete steps to miti-gate and prevent the suffering of human beings’.66 The inclusion of the term ‘humanitarian’ in the Preamble supports the view that the Refugee Convention should be interpreted and applied in a humanitarian spirit, ‘it was created in order to help human beings in times and situations where they need such help’.67 This implies that the usage of the term ‘humanitarian’ in international refugee law in fact serves a dual purpose: on the one hand it aims to ensure that refugee protection is non-political, and on the other hand it aims at mitigating human suffering (i.e. the suffering of refugees).

A question emerges whether this dual approach in international refugee law is reflected in the term ‘humanitarian’ in the ‘civilian and humanitarian character’ phrase, or whether the latter refers solely to humanitarian in one sense or the other. In other words, does ‘humanitarian’ for our current under-taking refer to both ‘non-political’ and ‘mitigating human suffering’, or simply to one of these understandings? If ‘humanitarian’ is to be understood as ‘non- political’ in addition to, or instead of, ‘mitigating human suffering’, it is argu-able that ‘humanitarian’ in our current context does not merely correspond to the meaning given the term in international humanitarian law. In this way, international refugee law would have expanded the meaning of the concept by linking it to ‘peaceful’ and ‘non-political’.

A key question then emerges as to whether or not ‘humanitarian’ for the purposes of ‘the civilian and humanitarian character of refugee camps’ implies ‘non-political’. Indeed, ‘humanitarian’ in the context of the ‘civilian and humanitarian character of refugee camps’ seems to imply that refugee camps are not to be misused or exploited for political (or military) purposes. This view


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68 unhcr, ‘Operational Guidelines’ (n 18) 45 para 4.69 At times it is appropriately referred to as the civilian and humanitarian nature, or charac-

ter, of refugee camps; see unsc Verbatim Records (21 January 1999) un Doc S/PV.3968; unsc Verbatim Records (12 February 1999) un Doc S/PV.3977; unsc Verbatim Records (16 September 1999) un Doc S/PV.4046; unsc Verbatim Records (19 April 2000) un Doc S/PV.4130; unsc Verbatim Records (10 December 2002) UN Doc S/PV.4660; unsc Verbatim Records (14 December 2004) un Doc S/PV.5100; unsc Verbatim Records (28 June 2006) un Doc S/PV.5476; unsc Verbatim Records (27 May 2008) un Doc S/PV.5898; unsc Verbatim Records (26 June 2009) un Doc S/PV.6151. On other occasions as the ‘neutrality and secu-rity of refugee camps’: unsc Verbatim Records (22 February 1999) un Doc S/PV.3980; the ‘security and neutrality in refugee camps’: unsc Verbatim Records (16 September 1999) un Doc S/PV.4046; the ‘strictly humanitarian nature of (…) refugee camps’ in unsc Verbatim Records (21 January 1999) UN Doc S/PV.3968 and similar in unsc Verbatim Records (19 April 2000) UN Doc S/PV.4130; unsc Verbatim Records (10 December 2002) UN Doc S/PV.4660; unsc Verbatim Records (26 June 2009) UN Doc S/PV.6151; the ‘civilian nature of refugee camps’: unsc Verbatim Records (19 April 2000) UN Doc S/PV.4130 and similar in unsc Verbatim Records (23 April 2001) UN Doc S/PV.4312; unsc Verbatim Records (14 December 2004) UN Doc S/PV.5100; unsc Verbatim Records (28 June 2006) UN Doc S/PV.5476; unsc Verbatim Records (14 January 2009) UN Doc S/PV.6066. The essence arguably remains the same.

70 D. Forsythe ‘UNHCR’s mandate: the politics of being non-political’ (March 2001) unhcr New Issues in Refugee Research No 33, 1 ff.

71 unhcr, ‘Operational Protection’ (n 18) 42.

is supported by the fact that unhcr’s own guidelines on maintaining the civil-ian and humanitarian character of refugee camps assert that, in addition to combatants and refugees having committed serious common crimes or who are perceived to be a threat to national security, also political activists can pose a threat to the security of refugee camps.68

This also illustrates a conflation of ‘humanitarian’ and ‘non-political’. The fact that the term ‘humanitarian’ is frequently either conflated with, used inter-changeably, or used alongside the term ‘neutrality’ when it comes to refugee camps may further suggest that ‘humanitarian’ for our purposes indeed means ‘non-political’.69 Indeed, the concepts of ‘humanitarian’, ‘neutral’ and ‘non- political’ have previously in the context of unhcr’s activities been considered in essence to be one and the same.70 While neutrality applicable to the refugee camp does not seem to exist as a distinct legal concept, the context in which it is used implies that it contains two aspects: ideological neutrality and non-participation in hostilities, direct or indirect. unhcr’s Operational Protection in Camps and Settlements, for example, refers to ‘[t]he presence of armed elements, incursions by militias, cross-border raids, and recruitment from the camp will prevent the establishment of a neutral and secure refugee environment’.71



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Thus, the use of the concept of ‘humanitarian’ in our current context must be said to serve a dual purpose. On the one hand, it aims to guarantee that the refugee camp is used for non-political purposes, while, on the other hand, it also aims at mitigating human suffering.

3 Conclusions

This chapter has attempted to highlight the development of the principle of the civilian and humanitarian character of refugee camps, and to explore the meaning of the terms ‘civilian’ and ‘humanitarian’ within this principle. The decades of references by the unhcr Executive Committee, un General Assembly and Security Council to this principle in their conclusions and reso-lutions have contributed to clarifying the meaning of the terms it contains. Importantly, the cross-referencing between international humanitarian law and refugee law in relation to this principle is substantial.

While international refugee law employs terminology familiar to interna-tional humanitarian law, areas of distinction include the content of the con-cepts of ‘civilian’ and ‘humanitarian’ in the civilian and humanitarian character of refugee camps. Thus, while international refugee law appears to simply import ihl concepts such as ‘combatant’ and ‘civilian’, closer scrutiny of the terms reveals that they do not correspond – nor do they intend to – with the meaning of the terms in ihl. Rather than conveying any legal status, the con-cepts employed in the context of the civilian and humanitarian character of refugee camps appear to serve a functional, operational purpose. However, the fact that these terms depart from the well-established concepts of interna-tional humanitarian law, and that their definitions within the current context are in constant flux, may indeed have caused more confusion than clarification.

To avoid confusion, it is proposed that unhcr explicitly clarify the differ-ence in meaning between terms such as ‘civilian’ and ‘combatant’ in interna-tional humanitarian law, on the one hand, and in the context of the civilian and humanitarian character of refugee camps, on the other. Alternatively, unhcr and refugee law decision-makers should make an effort to employ terms that do not carry a distinct legal meaning and status in ihl. ‘Combatants’ might for example be replaced with ‘fighters’, or just ‘armed elements’. This chapter has also suggested that while the presence of combatants or armed elements may jeopardise the civilian and humanitarian character of refugee camps, it may not necessarily alter the camp’s civilian status from the perspec-tive of international humanitarian law.


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72 The un Security Council has on a number of occasions deliberately applied the principle to camps for internally displaced persons. unsc Resolution 1265 (17 September 1999) un Doc S/RES/1265; unsc Resolution 1296 (19 April 2000) UN Doc S/RES/1296; unsc Resolution 1834 (24 September 2008) UN Doc S/RES/1834; unsc Resolution 1861 (14 January 2009) UN Doc S/RES/1861; unsc Resolution 1922 (12 May 2010) UN Doc S/RES/1922; unsc Resolution 1923 (25 May 2010) UN Doc S/RES/1923. Two regional treaties are also specifically worth mentioning in this regard, namely the Great Lakes Pact on Security, Stability and Development in the Great Lakes Region, 15 December 2006 <http://www.internal-displacement.org/8025708F004BE3B1/(httpInfoFiles)/60ECE277A8EDA2DDC12572FB002BBDA7/$file/Great%20Lakes%20pact_en.pdf> accessed 1 March 2014; and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 23 October 2009 (entered into force 6 December 2012) http://www .refworld.org/docid/4ae572d82.html accessed 1 March 2014. See specifically Arts 3(1)(f); 7(5)(i); 9(2)(g).

Because the understanding of the content of the principle under discussion has been in constant flux, it is likely that significant developments will con-tinue. Perhaps one of the most interesting recent developments in this regard is the principle’s extension to situations of internal displacement.72 Whether or not the essence of the civilian and humanitarian character of refugee camps corresponds with that of the civilian and humanitarian character of internally displaced persons’ camps is an issue which deserves attention in future research. For now, however, it suffices to settle that the civilian and humanitarian char-acter of refugee camps has evolved into an important protection principle with a meaning distinct from the concepts it has borrowed from international humanitarian law.

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Revisiting the Civilian and Humanitarian Character of Refugee Camps

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