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“Safe zones”: A protective alternative to flight or a tool of refugee containment? Clarifying the international legal framework governing access to refugee protection against the backdrop of “safe zones” in conflict-affected contexts

Published online by Cambridge University Press:  09 March 2022

Abstract

So-called “safe zones” pose an increasingly pressing threat to genuine and robust international legal protection for persons fleeing conflict. This paper aims to address the key challenges and risks of safe zones under international law and to provide some clarifications on the legal framework which must be respected by refugee-receiving States. Through assessing the intentions of preventing migration flows which underlie their creation, this paper will demonstrate that the existence of safe zones cannot be used to circumvent the obligations of refugee-receiving States under international law, specifically the right to leave and seek asylum and the prohibition of non-refoulement. This paper concludes that safe zones should only be created as an urgent response to humanitarian crises in order to ensure the immediate safety of civilians in conflict zones, and only under very strict conditions. In this respect, this paper will demonstrate that even if safe zones comply with certain minimum protective standards, because of the volatility and complexities of the conflict environment they should not and cannot act as a substitute for genuine refugee protection under international law.

Type
Emerging Voices
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC.

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Footnotes

This is an updated version of a paper first published in error on March 4, 2022

*

The author was the recipient of the 2021 Henry Dunant Prize for a previous version of this paper that was submitted as part of the LLM in International Humanitarian Law and Human Rights at the Geneva Academy of International Humanitarian Law and Human Rights.

References

1 For an overview of prior examples, see, e.g., Jacques, Mélanie, Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law, Cambridge University Press, Cambridge, 2012, pp. 232–44CrossRefGoogle Scholar.

2 This follows the common definition in scholarship. This paper will refer to such spaces as “safe zones” throughout. See, e.g., Chau, Wilson Chun Hei, “Creating Refuge in Hell: The Coming of Age of Safe Areas for the Protection of Civilians in Armed Conflict”, Auckland University Law Review, Vol. 18, 2012, p. 192Google Scholar; Orchard, Phil, “Revisiting Humanitarian Safe Areas for Civilian Protection”, Global Governance, Vol. 20, No. 1, 2014, p. 55CrossRefGoogle Scholar; Geoff Gilbert and Anna Magdalena Rüsch, Creating Safe Zones and Safe Corridors in Conflict Situations: Providing Protection at Home or Preventing the Search for Asylum?, Policy Brief 5, The Andrew & Renata Kaldor Centre for International Refugee Law, June 2017, p. 3, available at: https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_brief_Creating_safe_zones_and_safe_corridors.pdf (all internet references were accessed in January 2022).

3 G. Gilbert and A. M. Rüsch, ibid., pp. 1–3.

4 Dubernet, Cécile, The International Containment of Displaced Persons: Humanitarian Spaces without Exit, Ashgate Publishing Limited, Aldershot, 2001, p. 122Google Scholar; Yamashita, Hikaru, Humanitarian Space and International Politics: The Creation of Safe Areas, Ashgate Publishing Limited, Aldershot, 2004, p. 3Google Scholar; M. Jacques, above note 1, p. 235; Ghráinne, Bríd Ní, “Safe Zones and the Internal Protection Alternative”, British Institute of International and Comparative Law, Vol. 69, No. 2, 2020, p. 336Google Scholar.

5 Long, Katy, “In Search of Sanctuary: Border Closures, ‘Safe’ Zones and Refugee Protection”, Journal of Refugee Studies, Vol. 26, No. 3, 2013, p. 462CrossRefGoogle Scholar. On protracted conflicts and displacement, see, e.g., Policinski, Ellen and Kuzmanovic, Jovana, “Protracted Conflicts: The Enduring Legacy of Endless War”, International Review of the Red Cross, Vol. 101, 2019, pp. 971–2CrossRefGoogle Scholar.

6 Although the State where a safe zone is located has obligations towards internally displaced persons (IDPs), this paper will focus on the obligations of refugee-receiving States towards those who are able to, or desire to, cross international borders in search of protection. For the IDP framework, see, e.g., Catherine Phuong, The International Protection of Internally Displaced Persons, Cambridge University Press, Cambridge, UK, 2005.

7 Based on an assessment of literature, these are the most commonly used terms. For “conventional” safe zones, see H. Yamashita, above note 4; P. Orchard, above note 2, p. 60. For “imposed” safe zones, see W. C. H. Chau, above note 2, p. 198; Gillard, Emanuela-Chiara, “‘Safe Areas’: The International Legal Framework”, International Review of the Red Cross, Vol. 99, 2017, pp. 1088–93CrossRefGoogle Scholar.

8 IHL foresees the possibility of establishing safe zones to protect the wounded and sick in Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 23, and for the civilian population in 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), Arts 14 and 15; 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), Arts 59 and 60. See more on the IHL framework in E.-C. Gillard, ibid., pp. 1077–87.

9 Regardless of this additional protection, civilians cannot be targeted at any time except if and for such time as they directly participate in hostilities and must be factored into the proportionality assessment for attacks against legitimate targets. Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Elgar, Cheltenham, 2019, pp. 241–2 and 376–8.

10 AP I, Art. 60.

11 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), rule 35, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

12 M. Sassòli, above note 9, p. 242.

13 M. Jacques, above note 1, p. 235; G. Gilbert and A. M. Rüsch, above note 2, p. 13; Birnie, Rutger and Welsh, Jennifer, “Displacement, Protection and Responsibility: A Case for Safe Areas”, Global Responsibility to Protect, Vol. 10, No. 3, 2018, p. 337CrossRefGoogle Scholar.

14 W. C. H. Chau, above note 2, p. 194.

15 M. Jacques, above note 1, p. 241; E.-C. Gillard, above note 7, p. 1088.

16 The Open Relief Centres in Sri Lanka have been considered as most similar to protected zones under IHL, and consequently the most successful. These spaces were a “temporary” place for displaced persons to reside and receive “relief assistance”, which were consented to by both parties to the conflict and formally recognized in a memorandum of understanding. M. Jacques, above note 1, pp. 238–40; P. Orchard, above note 2, p. 60.

17 See, e.g., M. Jacques, above note 1, pp. 235–44; David Keen, “Anything but Safe: Problems with the Protection of Civilians in So-Called ‘Safe Zones’”, Working Paper Series No. 17–187, London School of Economics and Political Science, November 2017, p. 36.

18 Charter of the United Nations, 1 UNTS XVI, 26 June 1945 (entered into force 24 October 1945), Art. 2(4).

19 The first internationally sanctioned safe zone in Northern Iraq (1991) did arguably offer some immediate protection but its fragile legal basis has been heavily criticized. In 1993, the UN Security Council explicitly authorized a safe zone in Srebrenica. The concentration of civilians without sufficient protection ultimately led to the July 1995 massacre by Bosnian Serb forces. Other UN-sanctioned zones in Somalia (1992) and Rwanda (1994) also failed to prevent armed attack because of the lack of consent from all belligerents and continued militarization. M. Jacques, above note 1, pp. 240–1; P. Orchard, above note 2, p. 60; R. Birnie and J. Welsh, above note 13, p. 337.

20 W. C. H. Chau, above note 2, pp. 198–202.

21 UN Charter, above note 18, Art. 27.

22 H. Yamashita, above note 4, p. 193.

23 See, e.g., M. Jacques, above note 1, pp. 240–41.

24 For an overview of the challenges posed by the exercise of the veto, see, e.g., Frédéric Mégret, “The Security Council”, in Frédéric Mégret and Philip Alston (eds), The United Nations and Human Rights: A Critical Appraisal, Oxford University Press, London, 2020, pp. 39–98; UN Security Council, The Veto, Security Council Report, Research Report No. 3, 19 October 2015, available at: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/research_report_3_the_veto_2015.pdf.

25 This is in line with the Human Rights Committee's complementarity approach and the position of Professor Vincent Chetail. Vincent Chetail, “Armed Conflict and Forced Migration: A Systemic Approach to International Humanitarian Law, Refugee Law and Human Rights Law”, in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, Oxford, 2014, pp. 700–34; Vincent Chetail, “Moving towards an Integrated Approach of Refugee Law and Human Rights Law”, in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law, Vol. 1, Oxford University Press, Oxford, 2021, pp. 210–12.

26 For the applicability of IHRL in armed conflict, see International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 136, 2004, para. 106; General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 11. For the material scope of application of IHL, see, e.g., M. Sassòli, above note 9, pp. 168–85.

27 G. Gilbert and A. M. Rüsch, above note 2, p. 3; B. Ní Ghráinne, above note 4, p. 336.

28 Convention relating to the Status of Refugees, 189 UNTS 137, 28 July 1951 (entered into force 22 April 1954) (Refugee Convention), Art. 28.

29 GC IV, Art. 35.

30 M. Sassòli, above note 9, p. 336.

31 V. Chetail, “Armed Conflict and Forced Migration”, above note 25, pp. 706–10.

32 M. Sassòli, above note 9, p. 297.

33 See, e.g., International Covenant on Civil and Political Rights, 999 UNTS 17, 16 December 1966 (entered into force 23 March 1976) (ICCPR), Art. 12(2). The right to leave has been reaffirmed in numerous treaties and argued as customary in nature; see Vincent Chetail, International Migration Law, Oxford University Press, Oxford, 2019, pp. 82–92.

34 E.-C. Gillard, above note 7, p. 1097. See also General Comment No. 31, above note 26, para. 10: “anyone within the power or effective control” of a State party.

35 E.-C. Gillard, above note 7, pp. 1098–9; W. C. H. Chau, above note 2, pp. 210–14.

36 See, e.g., ICCPR, Art. 4.

37 General Comment No. 29: Article 4: Derogations During a State of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 3.

38 For detailed analysis, see Marko Milanovic, “Extraterritorial Derogations from Human Rights Treaties in Armed Conflict”, in Nehal Bhuta (ed.), The Frontiers of Human Rights, Vol. 1, Oxford University Press, Oxford, 2016.

39 G. Gilbert and A. M. Rüsch, above note 2, p. 5.

40 V. Chetail, “Armed Conflict and Forced Migration”, above note 25, p. 716. See, e.g., African Charter on Human and Peoples’ Rights, Art. 12(2); International Convention on the Rights of the Child, Art. 10(2) and others.

41 Ibid. See, e.g., European Court of Human Rights, Isayeva v. Russia, Case No. 57950/00, 24 February 2005.

42 ICCPR, Art. 12(3); General Comment No. 27: Article 12 (Freedom of Movement), UN Doc. CCPR/C/21/Rev.1/Add.13, 2 November 1999, paras 14–16.

43 V. Chetail, above note 33, p. 80.

44 Ibid., pp. 84–5.

45 This analysis focuses on the obligations of refugee-receiving States to respect the right to leave as practice has shown that safe zones would be established with the intention to prevent individuals from entering the State of asylum, rather than by the home State to prevent the flight of its nationals.

46 Universal Declaration of Human Rights, UN General Assembly Resolution 217 A(III), 10 December 1948, Art. 14.

47 Edwards, Alice, “Human Rights, Refugees, and The Right ‘To Enjoy’ Asylum”, International Journal of Refugee Law, Vol. 17, No. 2, 2005, p. 301CrossRefGoogle Scholar.

48 Vincent Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law”, in Ruth Rubio-Marín (ed.), Human Rights and Immigration, Vol. 1, Oxford University Press, Oxford, 2014, p. 31.

49 Refugee Convention, Art. 33. See also Rebecca M. M. Wallace, “The Principle of Non-refoulement in International Refugee Law”, in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration, Elgar, Cheltenham, 2014, p. 418.

50 GC IV, Art. 45. According to this provision, transfer is also prohibited if the destination state is not party to GC IV or is not willing or able to respect it. For analysis of non-refoulement under IHL see Vincent Chetail, “The Transfer and Deportation of Civilians”, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, pp. 1187–9 and 1198–209.

51 General Comment No. 31, above note 26, para. 12. Non-refoulement has been explicitly endorsed in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, 10 December 1984 (entered into force 26 June 1987), Art. 3. It is also recognized as implicit in the European Convention on Human Rights; see European Court of Human Rights, Soering v UK, Application No. 14038/88, 7 July 1989 and a customary norm, arguably amounting to jus cogens. See V. Chetail, above note 48, pp. 29–39.

52 See, e.g., European Court of Human Rights, Sufi and Elmi v. United Kingdom, Application Nos. 8319/07 and 1149/07, 28 June 2011 in V. Chetail, above note 50, p. 1204. For analysis of the scope of non-refoulement, see Emanuela-Chiara Gillard, “There's No Place like Home: States’ Obligations in Relation to Transfers of Persons”, International Review of the Red Cross, Vol. 90, 2008, pp. 716–23; V. Chetail, above note 48, pp. 34–9.

53 V. Chetail, above note 48, p. 35.

54 For an assessment of Art. 33(2), see Duffy, Aoife, “Expulsion to Face Torture – Non-Refoulement in International Law”, International Journal of Refugee Law, Vol. 20, No. 3, 2008, pp. 374–7CrossRefGoogle Scholar. For the application of the refugee definition to situations of armed conflict, see V. Chetail, “Armed Conflict and Forced Migration”, above note 25, pp. 722–7.

55 K. Long, above note 5, pp. 462–7.

56 UN High Commissioner for Refugees (UNHCR), “Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol”, 26 January 2007, para. 7, available at: https://www.unhcr.org/4d9486929.pdf.

57 European Court of Human Rights, Hirsi Jamaa and Others v. Italy, Application No. 27765/09, 23 February 2012, paras 180–1.

58 B. Ní Ghráinne, above note 4, p. 344.

59 Bríd Ní Ghráinne, “Internally Displaced Persons and International Law”, in Satvinder Singh Juss (ed.), Research Handbook on International Refugee Law, Elgar, Cheltenham, 2019, pp. 37–8.

60 This derives from the wording of the definition of a refugee as “outside the country of his nationality” and was affirmed in R v. Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others [2004] UKHL 55. See V. Chetail, above note 48, p. 36.

61 This is based on the ordinary meaning of the Refugee Convention, in light of its object and purpose, taking into account subsequent practice under Article 31 of the Vienna Convention on the Law of Treaties. Thomas Gammeltoft-Hansen, “Extraterritorial Migration Control and the Reach of Human Rights”, in V. Chetail and C. Bauloz (eds), Research Handbook on International Law and Migration, Elgar, Cheltenham, 2014, p. 116; UNHCR, above note 56, paras 23–4.

62 UNHCR, above note 56, paras 42–3.

63 V. Chetail, above note 48, pp. 36–7.

64 As affirmed by the UNHCR; V. Chetail, “Armed Conflict and Forced Migration”, above note 25, pp. 719–20.

65 See, e.g., European Court of Human Rights, MSS v. Belgium and Greece, Application No. 30696/09, 21 January 2011, para. 223.

66 The prohibition of collective expulsion is explicit in some regional treaties, acknowledged by the Human Rights Committee as implicit in Article 13 of the ICCPR and is arguably a customary norm. V. Chetail, “Armed Conflict and Forced Migration”, above note 25, pp. 720–1; V. Chetail, above note 33, pp. 139–42.

67 Jessica Schultz, The Internal Protection Alternative in Refugee Law, Brill Nijhoff, Boston, MA, 2019, p. 2.

68 Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, 10 September 1969 (entered into force 20 June 1974) (OAU Convention), Art. I(2).

69 Jessica Schultz, “The Internal Protection Alternative and its Relation to Refugee Status”, in S. S. Juss (ed.), Research Handbook on International Refugee Law, Elgar, Cheltenham, 2019, p. 129.

70 Ibid.

71 UNHCR, Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the Context of Article 1A (2) of the 1951 Refugee Convention and/or 1967 Protocol relating to the Status of Refugees, UN Doc. HCR/GIP/03/04, 23 July 2003, paras 6–7.

72 Article 8 of the EUQD defines the IPA and explicitly refers to Article 7 which defines actors of protection. See Council Directive 2011/95/EU of 13 December 2011 [2011] OJ L 337/9-337/26 (EUQD).

73 UNHCR, above note 71, para. 13.

74 Ibid.

75 P. Orchard, above note 2, p. 68.

76 E.-C. Gillard, above note 7, p. 1093.

77 See, e.g., Caelin Briggs, “Protection of Civilians Sites: Lessons from South Sudan for Future Operations”, Norwegian Refugee Council, 31 May 2017, available at: https://www.nrc.no/globalassets/pdf/reports/poc-sites_lessons-from-south-sudan-copy.pdf.

78 UNHCR, above note 71, para. 17. “Protection must be effective and of a durable nature … provided by an organised and stable authority exercising full control over the territory and population in question.”

79 The limited capacity of international organizations to offer protection has been recognised by the UNHCR. Ibid., para. 16.

80 Damian Lilly, “Protection of Civilians Sites: A New Type of Displacement Settlement?” Humanitarian Exchange, September 2014, pp. 31–3, available at: https://odihpn.org/magazine/protection-of-civilians-sites-a-new-type-of-displacement-settlement/.

81 E.-C. Gillard, above note 7, p. 1095.

82 EUQD, Art. 8(1). Similar notions of reasonableness and settlement have been endorsed by the UNHCR. See UNHCR, above note 71, pp. 24–30.

83 B. Ní Ghráinne, above note 4, p. 363.

84 UNHCR, Interpreting Article 1 of the 1951 Geneva Convention Relating to the Status of Refugees, Geneva, April 2001, para. 13.

85 B. Ní Ghráinne, above note 4, p. 350.

86 G. Gilbert and A. M. Rüsch, above note 2, p. 2.

87 B. Ní Ghráinne, above note 4, p. 351.

88 Ibid., p. 344.

89 EUQD, Art. 8(2); UNHCR, above note 71, para. 4.

90 See, e.g., Universal Declaration of Human Rights, Art. 13(2); ICCPR, Art. 12(4). See also ICRC Customary Law Study, above note 11, rule 132, which recognizes a right to return in IAC and NIAC. Articles 35, 45 and 49(1) of GC IV implicitly permit the voluntary return of civilians. For analysis, see V. Chetail, “Armed Conflict and Forced Migration”, above note 25, pp. 728–9.

91 K. Long, above note 5, p. 471.

92 GC IV, Art. 45(4).

93 V. Chetail, above note 50, pp. 1190–202.

94 Cédric Cotter, Displacement in Times of Armed Conflict: How International Humanitarian Law Protects in War and Why it Matters, ICRC's IHL Impact Series, Geneva, April 2019, pp. 55–6.

95 R. Birnie and J. Welsh, above note 13, p. 339.

96 Vincent Chetail, “Voluntary Repatriation in Public International Law: Concepts and Contents”, Refugee Survey Quarterly, Vol. 23, No. 1, 2004, p. 19; UNHCR, Handbook on Voluntary Repatriation: International Protection, January 1996, Chapter 2, available at: https://www.unhcr.org/3bfe68d32.pdf. The “voluntary character of repatriation” is also endorsed in Article 5 of the OAU Convention.

97 V. Chetail, ibid., pp. 17–18. This is affirmed by Objective 21 of UN General Assembly, Global Compact for Safe, Orderly and Regular Migration, 19 December 2019, 73rd Session, UN Doc. A/RES/73/195, para. 37.

98 UNHCR, Global Consultations on International Protection/Third Track: Voluntary Repatriation, UN Doc. EC/GC/02/5, 25 April 2002, para. 15; UNHCR, above note 96, p. 11.

99 Long, Katy, The Point of No Return: Refugees, Rights, and Repatriation, Oxford University Press, Oxford, 2013, p. 174CrossRefGoogle Scholar.

100 K. Long, above note 5, p. 459.

101 As recognized by the ICRC, a key factor that impedes the return of people displaced by armed conflict is the ongoing impact of the destruction of their homes and other infrastructure that are essential to meeting their basic needs on return, including electricity, drinking water and health-care services. Reconstruction processes in a safe zone could overcome this potential hurdle to return. C. Cotter, above note 94, p. 56.

102 ICCPR, Art. 9.

103 G. Gilbert and A. M. Rüsch, above note 2, p. 7.

104 R. Birnie and J. Welsh, above note 13, p. 332.