Relationship between International Humanitarian Law and International Refugee Law

Armed conflicts, both international and non-international, result in not only direct casualties but also in mass displacement of civilians. In such dire situations, two significant bodies of law come into play—International Humanitarian Law (IHL) and International Refugee Law (IRL). While they operate with distinct mandates and institutional frameworks, both aim to protect individuals affected by conflict and persecution. The relationship between IHL and IRL is complementary and synergistic, yet nuanced in scope and application.

This article explores the principles, intersections, divergences, and practical implications of the relationship between International Humanitarian Law and International Refugee Law, supported by treaties, conventions, and case law.

International Humanitarian Law (IHL)

International Humanitarian Law, also known as the Law of Armed Conflict or Law of War, is a set of rules that aim to limit the effects of armed conflict on people and property. It primarily protects persons who are not or are no longer participating in hostilities (e.g., civilians, wounded soldiers, prisoners of war) and restricts the means and methods of warfare.

Key Sources of IHL

• The Geneva Conventions of 1949 and their Additional Protocols (1977, 2005)
• Customary International Humanitarian Law, as recognized by the International Committee of the Red Cross (ICRC)
• The Hague Conventions (regulating the conduct of warfare)

IHL applies only during times of armed conflict, whether international (between states) or non-international (between a state and non-state actors).

International Refugee Law (IRL)

International Refugee Law is a body of law that governs the status, rights, and protection of refugees—individuals who have fled their country due to a well-founded fear of persecution.

Key Sources of IRL:

• 1951 Convention Relating to the Status of Refugees
• 1967 Protocol Relating to the Status of Refugees

Regional Instruments, such as:

• OAU Convention (1969) in Africa
• Cartagena Declaration (1984) in Latin America

According to Article 1A(2) of the 1951 Refugee Convention, a refugee is someone who:

“...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or... unwilling to avail himself of the protection of that country.”

IRL applies before, during, and after conflicts, provided the displacement arises from threats that fall within its definitional ambit.

Intersections between IHL and IRL

1. Common Objective of Protection

Both IHL and IRL are grounded in humanitarian principles, with the shared goal of safeguarding human dignity in the face of violence, persecution, and displacement. IHL protects civilians during conflict, and IRL protects those who flee such conflict.

2. Protection of Civilians and Internally Displaced Persons (IDPs)

While IRL primarily protects refugees (those who cross international borders), IHL provides protections for internally displaced persons (IDPs) who remain within their country but flee violence. For instance:

• Common Article 3 of the Geneva Conventions protects persons taking no active part in hostilities.
• Protocol II offers specific protections for civilians in internal armed conflicts.

Though IDPs are not covered under the Refugee Convention, IHL ensures their protection within conflict zones, thus bridging the gap.

3. Principle of Non-Refoulement and IHL

The principle of non-refoulement, a cornerstone of IRL, prohibits states from returning individuals to a place where they face serious threats to life or freedom. IHL complements this by identifying situations of armed conflict as inherently dangerous, making returns inappropriate in such conditions.

4. Complementary Legal Regimes

In certain cases, individuals fleeing generalized violence during armed conflict may not meet the narrow definition of a “refugee” under the 1951 Convention. However, regional instruments (e.g., the OAU Convention) and IHL protections can serve as a legal basis for granting asylum or temporary protection.

5. Role of the International Committee of the Red Cross (ICRC) and UNHCR

• The ICRC is the guardian of IHL and focuses on protection and assistance during conflict.
• The UNHCR is mandated to protect refugees under IRL and often works in areas where IHL is applicable.

These bodies collaborate extensively in conflict zones to deliver humanitarian aid, ensure access to protection, and prevent unlawful returns.

Divergences between IHL and IRL

Despite overlaps, IHL and IRL differ in several critical ways:

Practical Implications and Challenges

1. Displacement during Armed Conflict

Most modern refugee crises (e.g., Syria, Sudan, Ukraine) are linked to armed conflicts. In such cases, both IHL and IRL apply simultaneously, requiring states and agencies to coordinate protection strategies that include legal status, humanitarian assistance, and long-term solutions.

2. Status of Combatants and Exclusion Clauses

Article 1F of the Refugee Convention excludes individuals who have committed war crimes or crimes against humanity from refugee protection. Determining such conduct requires reference to IHL definitions, thus underlining their interdependence.

3. Non-International Armed Conflicts and Gaps in Protection

IHL is less detailed for non-international conflicts (as in Common Article 3 and Protocol II), which are the most frequent today. When these conflicts generate mass displacement, IRL and human rights law help fill the protection gaps, especially regarding non-refoulement and asylum procedures.

4. Use of IHL in Refugee Status Determination (RSD)

In complex cases where an applicant flees generalized violence (but not targeted persecution), IHL helps assess the nature of conflict and civilian harm, thereby influencing decisions on refugee status or complementary protection.

Regional and International Instruments Bridging the Gap

1. OAU Refugee Convention (1969)

Expands the refugee definition to include those fleeing “events seriously disturbing public order,” such as civil war, thus aligning closely with IHL contexts.

2. Cartagena Declaration (1984)

Adopted in Latin America, it considers “massive human rights violations and internal conflict” as grounds for refugee protection—again reflecting IHL-relevant situations.

3. UNHCR Guidelines on International Protection

The UNHCR has issued Guidelines (No. 12, 2016) which clarify how persons fleeing armed conflict and violence may qualify as refugees, even without targeted persecution, when risks are serious and individualized.

Conclusion

The relationship between International Humanitarian Law and International Refugee Law is both complementary and evolving. As armed conflicts remain a leading cause of forced displacement worldwide, the need for coherence between these legal regimes becomes critical.

While IHL protects during conflict, IRL ensures safety for those who flee such conditions. Both bodies of law, supported by human rights law, collectively form the tripartite framework for protecting displaced persons. Effective implementation, political will, and international cooperation are essential to ensure that legal protections translate into real-world safety and dignity for affected populations.

References

[1] Geneva Conventions of 1949 and Additional Protocols (ICRC)

[2] The 1951 Refugee Convention

[3] UNHCR Guidelines on International Protection No. 12, 2016

[4] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969

[5] Cartagena Declaration on Refugees, 1984