The United Nations High Commissioner for Refugees (UNHCR) issued new guidelines relating to individuals who are fleeing their countries due to armed conflict and violence, seeking to ensure that States consistently apply international law when conducting refugee determinations and generally view these individuals as possible refugees. [UN News Centre] The guidelines are intended to resolve discrepancies in States’ application of the standards under the 1951 Convention relating to the Status of Refugees (1951 Convention), its 1967 Protocol, and regional standards; some States require those fleeing conflict to prove they have been individually targeted, which the UNHCR asserts is not necessary. [UN News Centre] The UNHCR Assistant High Commissioner for Protection, Volker Türk, commented that the guidelines are essential because most conflicts today target groups of civilians on the basis of real or perceived ethnic, religious, social, or political associations. [UN News Centre] The guidelines also come at a time when a record number of people are displaced from their homes around the world, according to the UNHCR, and many refugees are fleeing due to armed conflict in their countries of origin. [UN News Centre; MercyCorps]
The guidelines identify standards relevant to the definition of refugee under Article 1A(2) of the 1951 Convention, Article 1(2) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Convention), and Conclusion III(3) of the 1984 Cartagena Declaration on Refugees (Cartagena Declaration). The guidelines emphasize, though, the primacy of the 1951 Convention and its 1967 Protocol as the universal standards. See UNHCR, Guidelines On International Protection No. 12: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions (Guidelines on International Protection) (2016). The guidelines reiterate that the 1951 Convention and 1967 Protocol remain the “universal and primary legal protection” for refugees, and that regional instruments incorporate, compliment, and elaborate on them. See id. at paras. 6, 45.
The guidelines recommend following a sequential approach to refugee determination, such that States first determine a person’s status using the 1951 Convention and only apply the regional definitions if the person is found not to be a refugee under the 1951 Convention. See id. at paras. 87-88.
The guidelines clarify prior written guidance that could have led States to exclude persons fleeing conflict. Paragraph 164 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention had stated that individuals who left their country of origin due to an armed conflict “are not normally considered refugees,” but the new guidelines specify that the statement is to be understood as “limited to situations where there is no causal link between a person’s well-founded fear of being persecuted” and a protected ground under the 1951 Convention. See id. at para. 10.
The guidelines use the term “situations of armed conflict and violence” to refer to circumstances “marked by a material level or spread of violence that affects the civilian population,” including violence between State and non-State actors, between different groups in society, between two or more States, or between various non-State groups, among others situations. See id. at para. 5.
Article 1A(2) of the 1951 Convention
The guidelines assert that the factors used in determining whether a person has a well-founded fear of persecution – including threats to life or freedom, serious human rights violations, discrimination that leads to intolerable prejudice, and serious violations of international humanitarian law (IHL) – ought to be applied “no differently in the context of persons fleeing situations of armed conflict and violence.” See id. at paras. 11-12. Additionally, the guidelines provide a reminder that in identifying persecution, the factors of “age, gender, opinions, health, feelings, and psychological make-up of the applicant” should be considered. See id. at para. 11.
With regard to what may constitute persecution, the guidelines clarify a number of issues. See id. at paras. 15-31. First, the guidelines state that international criminal law should not be relied on to determine refugee status. While actions that are crimes under international criminal law may also constitute persecution under refugee law, “relying on IHL or international criminal law in their strictest sense to determine refugee status could undermine the international protection objectives of the 1951 Convention.” See id. at paras. 14-15. Further, the guidelines go on to say that relying on international criminal law for refugee determinations “could leave outside its protection persons who face serious threats to their life or freedom.” See id. at para. 15.
Second, the guidelines specify that an individual or a group may be at risk of persecution. The risk of persecution that all members of a group face, the guidelines state, does not negate an individual’s claim of risk of persecution. See id. at para. 17. Further, the guidelines comment that aerial bombardments; the use of certain devices, such as improvised explosive devices or car bombs; blocking supplies, such as food or water; or destroying hospitals or schools in a community may amount to persecution as serious human rights violations or IHL violations affecting groups of people. See id. at para. 18. Long-term consequences of armed conflict may also rise to the level of persecution, the guidelines state, including where the violence results in abject poverty, a lack of rule of law, food insecurity, or other long-term situations. See id. at para. 19.
The guidelines also establish that the degree of risk necessary to constitute a well-founded fear of persecution in the context of violence or armed conflict is that a person’s “continued stay in the country of origin has become, or would become, intolerable.” See id. at para. 21. Furthermore, the guidelines indicate that “the fluctuating character of many contemporary situations of armed conflict and violence” must be assessed when considering the level of risk. See id. at para. 25. This approach requires States to consider the temporary nature of ceasefire agreements, the probability that violence may spread to other regions within a country, and the long-term effects of violence, among other factors. See id.
The guidelines also address the use of sexual and gender-based violence during armed conflict, which may be part of a larger strategy to terrorize or destroy a community or based in discrimination or other protected grounds. The effects of sexual and gender-based violence, the guidelines state, may be long-term and continue after the conflict has ended. See id. at para. 27.
Finally, the guidelines also specify that the agents of persecution may be State or non-State actors and that persecution may arise after the individual has left the country of origin. See id. at paras. 28-31. If a non-State actor is responsible for the risk of persecution, the State must assess whether the country of origin “is able and/or willing to provide protection against persecution.” See id. at para. 30.
In considering whether the person faces a risk of persecution on the basis of a characteristic protected by the 1951 Convention, the guidelines suggest that decision-makers look to the overall context of the country, including the intent and strategies employed by persecutors, the response of States, and the effects of the situation of violence. Protected grounds, or convention grounds, for fear of persecution may be numerous and overlapping and do not need to be the dominant cause of the fear of persecution. See id. at paras. 32-33. The guidelines also assert that, in considering internal flight or relocation alternatives for the individual, a State must take into account the practical, legal, and safe accessibility of the alternative. See id. at paras. 40-43.
Article 1(2) of the 1969 OAU Convention & Conclusion III(3) of the 1984 Cartagena Declaration
The guidelines dissect key considerations and elements of the OAU Convention, including how the definition of refugee is interpreted, and offer an analysis of the 1984 Cartagena Declaration’s Conclusion III(3). See id. at paras. 44-85. Given the regional instruments’ importance in expanding protections beyond the 1951 Convention, the guidelines highlight the need to correctly interpret the regional definitions of refugee. See id. at para. 8.
According to the UNHCR, Article 1(2) of the 1969 OAU Convention is the first of its kind to recognize “objectively” identifiable situations, like the loss of government authority to external aggression, occupation, or “events seriously disturbing public order,” as a basis to compel people to flee the country. The guidelines state that the situations for leaving the country should be interpreted in an evolutionary way to include situations not foreseeable at the time the 1969 OAU Convention was drafted. See id. at paras. 48, 53-56.
Additionally, the guidelines analyze the key elements of the Conclusion III(3). Circumstances compelling flight under the Cartagena Declaration, according to the guidelines, include threats to life, security, or freedom and violence from organized criminal groups. Situations that compel individuals to flee under the Cartagena Declaration “are characterized by the indiscriminate, unpredictable or collective nature of the threats.” See id. at paras. 61-85.
The guidelines recommend that States take into account country of origin information and share the burden of gathering evidence. Determinations of refugee status should be considered on their individual merits and in light of relevant country of origin information, both quantitative and qualitative. However, the decision-maker must keep in mind that information on the country of origin and the conflict may not reflect specific circumstances of harm facing particular groups (such as gender-specific forms of harm). See id. at paras. 89-92. Finally, the guidelines state that the obligation to gather relevant facts and supporting evidence must be shared between the applicant and the decision-maker because situations of armed conflict and violence often present major obstacles to individuals in substantiating their claims. See id. at para. 93.
UNCHR has a mandate to protect refugees, stateless people, and internally displaced people. It monitors compliance with international refugee standards and provides governments with guidelines, information, and legal policy advice aimed at upholding the rights of refugees. [UN News Centre]
This publication is UNHCR’s most recent set of guidelines aimed at promoting refugee rights. Previously, UNHCR published the Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, which it stated was intended to be read together with Guidelines On International Protection No. 11: Prima Facie Recognition of Refugee Status, Guidelines On International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, and Guidelines on International Protection No 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees.