Chapter 8 - Conclusion

Summary

This book examined the refugee definition in Article 1A(2) Refugee Convention in light of international human rights law, customary IHL and international criminal law with respect to refugee protection claims of individuals who had to leave their country of origin due to armed conflict or who fear return to their country of origin because of armed conflict. The book sought to calibrate the extent to which and the way in which customary IHL and international criminal law should be drawn upon in the interpretation of the refugee definition as regards such claims to refugee protection.

International refugee law, international human rights law, IHL and international criminal law are distinct yet interrelated branches of international law that interact in a variety of ways to further the protection of the individual in armed conflict. Customary IHL and international criminal law cannot and should not replace international human rights law as a source of insight with respect to conflict-related claims to refugee protection. Rather, these bodies of international law complement the human rights-based interpretation of the refugee definition. They can assist national refugee status decision-makers by providing armed conflict-specific interpretative guidance on certain matters.

Refugee status decision-makers ought to determine whether a situation of violence in the country of origin was, is or is likely to be an armed conflict since customary IHL and international criminal law can only provide interpretative guidance if the refugee protection claim relates to an armed conflict in the country of origin. A suitable definition of armed conflict was provided by the ICTY in the Tadić case, with subsequent ICTY jurisprudence offering a set of indicators to determine whether a situation of violence constitutes an armed conflict. Refugee status decision-makers can draw on this definition of armed conflicts and these indicators in assessing whether there is, was or is likely to be an armed conflict in the country of origin.

The general rule on treaty interpretation set forth in the VCLT allows for an interpretation of the refugee definition in light of international human rights law, customary IHL and international criminal law. Of particular relevance in this respect is the requirement to interpret the refugee definition in an inclusive and dynamic way which flows from the Refugee Convention's humanitarian object and purpose.