January 14, 2024

Legal implications of forced return and deportation for war migrants

This Article is written by Tisha Mehta, a 3rd-year law student at Gujarat National Law University

ABSTRACT

The last few years have witnessed a surge in war and a tremendous increase in war crimes like the Isreal – Hamas war, Ukraine – Russia war, civil unrest in Myanmar, Taliban reign in Afghanistan, etc. Due to bloodshed and widespread destruction, many citizens are leaving their nation out of necessity. So they take shelter and become migrants in other countries. But here comes the issue of forced migration and deportation of war victims which is practised by many countries to not face the burnt of it. This article discusses the legal framework and issues surrounding the same. 

  • INTRODUCTION

The forced return and deportation of war migrants carry profound legal implications that intersect with international human rights and refugee law. In the aftermath of armed conflicts, individuals fleeing conflict zones often seek refuge in foreign territories, invoking a complex web of legal principles and protections. This introduction explores the legal dimensions surrounding the forced return and deportation of war migrants, shedding light on the rights and safeguards established by international instruments.

In recent decades, the world has witnessed a surge in mass displacement due to armed conflicts, leading to an increased number of war migrants seeking safety and asylum across borders. The legal framework governing the treatment of these individuals is grounded in principles designed to protect human rights, prevent refoulement, and ensure dignified and just treatment for those escaping the ravages of war.

The issue of forced displacement has far-reaching consequences, particularly for refugees, asylum seekers, migrants, and internally displaced persons (IDPs). A significant percentage, up to 76%, of forcibly displaced individuals find refuge in low- or middle-income countries, placing substantial strains on host communities and resources. The survival of these displaced populations often hinges on the assistance provided by authorities, local communities, and humanitarian organizations.

Despite seeking safety, those forcibly displaced encounter various challenges, including protection issues and limited access to essentials such as shelter, food, and other basic services. The precarious legal status of refugees, asylum seekers, migrants, and IDPs in host countries exacerbates their vulnerability. The most vulnerable individuals, trying to avoid violence, exploitation, abuse, detention, or arrest, are often difficult to reach by humanitarian efforts.

Urban areas present unique challenges for displaced populations, including poverty, a lack of psychosocial support, and difficulties in normalizing their legal status. Furthermore, incidents of violence, abuse, and exploitation tend to escalate in the aftermath of new emergencies, compounding the challenges faced by these already vulnerable groups.

One of the key challenges is finding durable solutions for the forcibly displaced. While voluntary repatriation to their home countries is the preferred long-term outcome, obstacles such as political conflicts, recurrent violence, and instability hinder many from returning. Forced displacement is evolving from a temporary to a protracted phenomenon, with an average duration of 20 years for refugees and more than 10 years for most IDPs. This prolonged displacement not only intensifies the challenges faced by individuals but also poses enduring difficulties for host communities and the humanitarian organizations striving to address the evolving needs of those displaced. Addressing these complex and protracted displacement issues requires concerted efforts on political, humanitarian, and international levels to find sustainable solutions and support the well-being of those affected.

  • LAWS DEALING WITH FORCED MIGRATION OR DEPORTATION

1. Refugee Law:

The 1951 Refugee Convention and its 1967 Protocol form the core of international refugee law. According to Article 33 of the Convention, no State Party shall expel or return (“refouler”) a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion. Forced return of individuals who qualify as refugees under the Convention without proper consideration of their asylum claims would violate the principle of non-refoulement.

2. International Humanitarian Law (IHL):

IHL, including the Geneva Conventions and their Additional Protocols, regulates the conduct of armed conflicts. Civilians and other non-combatants are entitled to protection, and any forced return that places them at risk of serious harm or violates their fundamental rights may breach IHL. The principle of distinction mandates a clear separation between civilians and combatants, and forcing civilians back into a war zone may violate this principle.

3. Human Rights Law:

The Universal Declaration of Human Rights (UDHR) and various international treaties protect the rights of individuals, irrespective of their immigration status. The right to life, liberty, and security of person (Article 3 of the UDHR) is a fundamental human right. States are obligated to respect the principle of non-refoulement under human rights treaties, ensuring that individuals are not returned to situations where their rights are at risk.

4. Customary International Law:

 Customary international law is based on consistent state practice and opinio juris. Over time, the prohibition of refoulement and the protection of civilians during armed conflicts have become accepted norms of customary international law. Customary norms can apply even in the absence of specific treaty obligations, and they contribute to the overall framework protecting individuals in situations involving forced return. Geneva IV is considered constitutive and binding on signatories, especially in expanding legal duties for the occupying power. The distinction is made between constitutive elements, which apply to signatories, and declaratory aspects, which clarify customary law. The prohibition of mass deportations, articulated in Article 49(1), is deemed declaratory of customary international law. The commentary on Geneva IV supports this view, indicating that by 1958, the provisions of Article 49 were considered embodied in international law. The Lieber Code from 1863, known as a benchmark for military conduct, is referenced as an early instance of a sovereign nation establishing formal guidelines for its army’s behavior. Arguments from the Israeli Supreme Court, particularly in a 1988 judgment (Affo case), cited that Article 49 does not embody principles of customary international law but reflects conventional international law. 

5. International Criminal Law:

Under the Rome Statute of the International Criminal Court (ICC), acts such as deportation or forcible transfer of population can constitute crimes against humanity if committed as part of a widespread or systematic attack directed against any civilian population. Individuals responsible for ordering or carrying out forced returns in a manner that amounts to a crime against humanity may be subject to prosecution by the ICC or, in some cases, by national courts exercising universal jurisdiction.

  • ISSUES WITH PRACTICAL APPLICATION

The practical application of legal principles related to forced return depends on the specific circumstances of each case. Individuals facing deportation may seek protection through asylum procedures, engage with international human rights bodies, or challenge deportation orders through legal channels. Regional human rights bodies and treaties may also play a role, depending on the jurisdiction. Legal advocacy and international pressure can be influential in preventing forced returns that would violate international law.

Forced expulsions and deportations are connected to the issue of arbitrary displacement, encompassing conflict-induced displacement, environmentally-induced displacement, disaster-induced displacement, and development-induced displacement. The Guiding Principles on Internal Displacement provide a flexible, rather than strictly defined, identification of persons whose needs are of concern. The term “in particular” suggests flexibility in the list of reasons for displacement.

Despite the diverse reasons for internal displacement, global statistics often focus on Internally Displaced Persons (IDPs) uprooted by conflict and human rights violations. Some propose a narrower definition of IDPs limited to those displaced specifically by violence. IDPs are sometimes referred to as “refugees in all but name” due to similarities in their situations. The International Committee of the Red Cross (ICRC) aims to alleviate the suffering of individuals affected by armed conflict. While focusing on the civilian population as a whole, the ICRC recognizes the urgent needs of displaced persons and local communities, particularly IDPs facing material challenges. Refoulement, or forced return, occurs when a State prevents a foreign individual from entering its territory. Expulsion involves prohibiting an individual already present on the territory from continuing their stay and sending them back to the border or their State of origin.

To protect refugees and prevent their return to life-threatening situations, the 1951 Convention Relating to the Status of Refugees and other international texts establish guarantees against expulsion or refoulement. These guarantees ensure the individual assessment of refugee status, aligning with the principle of non-refoulement, which is protected by fundamental guarantees in international conventions on human rights, prevention of torture, and ill-treatment. Article 14 of the Universal Declaration of Human Rights and similar provisions in other international instruments emphasize the right to seek asylum from persecution. While there is no obligation for States to grant asylum or allow entry, this doesn’t grant unlimited rights to return individuals. The cornerstone of international protection for those fleeing danger is the Principle of non-refoulement, emphasizing that even lawful return orders must be executed with respect for the rights, safety, and dignity of those being returned.

  • RIGHTS OF REFUGESS IN EXPLUSION

In cases of expulsion, certain guarantees are established to protect the rights of refugees and asylum seekers:

  1. Prohibition of Return to Threatened Territory: States are prohibited from expelling or returning a refugee or asylum seeker to a territory where their life or freedom is at risk.
  2. Exceptions with Due Process: Exceptions exist for individuals posing a danger to national security or convicted of serious crimes, but expulsion must follow due process.
  3. Right to Present Evidence and Appeal: Refugees have the right to present evidence, appeal decisions, and seek legal admission in another jurisdiction.
  4. International Legal Framework: The Refugee Convention (Articles 32 and 33) and the International Covenant on Civil and Political Rights (ICCPR) (Article 13) include provisions reinforcing these guarantees.
  5. Prohibition of Collective Expulsions: International law explicitly prohibits collective expulsions, as stated in various instruments, including the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and others.
  6. Definition of Collective Expulsion by ECtHR: The European Court of Human Rights (ECtHR) defines collective expulsion as the forced departure of aliens as a group, without a reasonable and objective examination of each individual’s case.
  7. Non-Discrimination and Arbitrariness: Expulsions must not be discriminatory or arbitrary, ensuring that each case is examined individually.
  8. Right to Challenge Decisions: Individuals subject to expulsion have the right to challenge deportation decisions through an effective legal remedy.
  9. Judicial Review and Non-Discrimination: Mass expulsions, if conducted without individual determination justifying expulsion, without providing the opportunity for judicial review, or if discriminatory, are considered prohibited collective expulsions.

These guarantees aim to uphold the rights, safety, and dignity of refugees and asylum seekers, ensuring that any expulsion is carried out with due process and individual consideration.

  • THE PRINCIPLE OF NON-REFOULEMENT (PNR)

The Principle of Non-refoulement (PNR) is a vital safeguard preventing the forced return of individuals when there is a credible risk of fundamental rights violations, such as torture, ill-treatment, deprivation of life, or persecution. This principle is entrenched in international law, spanning international human rights law (IHRL), international refugee law (IRL), and certain extradition treaties, and is acknowledged as a customary norm.

The PNR translates the right of individuals to avoid being forcibly returned to perilous situations, offering concrete protection for those seeking asylum. It serves as a practical defense for the right to flee persecution without obligating States to grant asylum. Importantly, it prohibits the return of refugees or asylum seekers to a state where they fear persecution.

The PNR provides dual protection:

  •  It asserts the right of any individual entering another territory, even illegally, to request asylum and have their case considered.
  •  Even if asylum is denied, authorities are barred from returning the individual to a territory where their life or liberty is endangered. Forcing departure from the first asylum territory requires a second asylum country (a “safe third country”) willing to receive the refugee.

This principle also binds States concerning the prevention of torture and ill-treatment of any person, irrespective of their legal status on the territory. Despite its significance, the PNR encounters challenges from administrative practices, such as designating “safe countries” without due consideration for individual circumstances. Moreover, there is a concerning trend of expediting refugee returns after peace accords, potentially before security is fully restored.

However, the difficulty in finding second asylum countries has led to the practice of returning asylum seekers to their initial asylum country. Consequently, more public authorities are closing borders to avoid being the first safe state reached by a refugee, posing a threat to the right to asylum.

  • LEGAL FRAMEWORK OF THE PRINCIPLE OF NON-REFOULEMENT

The Principle of non-refoulement is expressly articulated in various international and regional instruments, underscoring its significance:

  • ICCPR (International Covenant on Civil and Political Rights) Article 13: Addresses the right of an individual to seek asylum and not to be forcibly expelled to a territory where their rights may be violated
  • 1967 UN Declaration on Territorial Asylum Article 3(1): Establishes principles related to territorial asylum and protection against refoulement.
  • Final Act of the 1954 UN Conference Relating to the Status of Stateless Persons Article 4: Addresses the protection of stateless persons and includes provisions related to non-refoulement.
  • 1969 OAU (Organization of African Unity) Convention Governing the Specific Aspects of Refugee Problems in Africa Article 2(3): Focuses on refugee protection in Africa, emphasizing non-refoulement principles.
  • 1969 ACHR (American Convention on Human Rights) Article 22(8): Articulates principles related to the right to seek asylum and protection against refoulement in the American context.
  • 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Article 3: Explicitly forbids the return of individuals to states where there is a credible risk of torture or other forms of ill-treatment.
  • Refugee Convention Article 33: Asserts that no Contracting State shall expel or return a refugee to territories where their life or freedom would be threatened. It includes specific conditions for exceptions related to security concerns or serious crimes.

These international and regional instruments collectively reinforce the importance of the Principle of non-refoulement, emphasizing the prohibition of returning individuals to situations where they may face severe human rights violations.

  • APPLICATION OF THE PRINCIPLE OF NON-REFOULMENT

The provided text outlines distinctions between International Refugee Law (IRL) and International Human Rights Law (IHRL) concerning the Principle of nonrefoulement (PNR) and its application in various contexts:

  1. IRL and PNR: The PNR is widely recognized in IRL, extending to admission and rejection at the border. This acknowledgment is affirmed by key instruments of refugee protection and UNHCR ExCom. Non-refoulement is acknowledged in interdiction operations (push-back) and rescue operations on the high seas.
  2. IHRL and Admission Obligations: IHRL doesn’t explicitly mandate the obligation to grant admission into a State’s territory. However, to uphold the PNR under IRL, States should ensure temporary admission for asylum seekers to conduct a fair and effective status and protection needs determination.
  3. Scope of PNR under IHRL: PNR must be respected for all individuals needing protection against refoulement under IHRL, irrespective of legal status. It applies when a person is within a State’s jurisdiction, including territory, territorial waters, and effective control of a State (even at borders, on the high seas, or occupied territory). Some countries contest this interpretation, while human rights bodies and courts rule that the PNR applies extraterritorially if a State exercises effective control, though criteria for this are not settled.
  4. Uncertainties and Violations: Uncertainties persist regarding when individuals are under a State’s jurisdiction. Denying entry, disembarkation, or returning a boat may not breach the PNR if it doesn’t result in sending a person back to a country where they are at risk. Violations occur if the flag State doesn’t accept responsibility for resettlement, and the ship’s next port of call is in a country where the person might face risk, provided they are within the State’s jurisdiction.
  • PROCEDURAL SAFEGUARDS OF PNR:

The provided text discusses several important principles and considerations related to international transfers and repatriation of individuals:

  1. Timely Information and Expression of Fears: Individuals facing transfer should receive timely information about the impending action. There should be an opportunity for these individuals to express their fears regarding the transfer. An independent and impartial body should be available to receive and consider these expressions of fear.
  2. Suspension of Transfer: If there are concerns raised by the individual facing transfer, there should be a provision for suspending the transfer. This is particularly important to prevent irreversible harm if the person is considered at risk.
  3. Compliance with Legal and International Standards: Even if a return order is deemed lawful, compliance with the Principle of non-refoulement (PRN), prohibition of collective expulsions, and adherence to international law are crucial in the return procedure.
  4. Human Rights and Dignity: Returns must respect the rights and dignity of individuals being returned. Humane treatment is essential, and the use of force must adhere to principles such as legality, necessity, proportionality, precaution, and liability. Lethal force is only justified when strictly unavoidable to protect life.
  5. Family Unity and Right to Private and Family Life: Returns must fully conform to the right to family unity and the right to the protection of private and family life. Involuntary family separations should be avoided, and families not posing security threats should have the right to choose whether to stay in the country or join their family members elsewhere.
  6. Voluntary Repatriation for Refugees: Repatriation of refugees is considered a viable option under appropriate circumstances. Voluntary repatriation is crucial, and the decision to return to the country of origin should be left to the refugees themselves. Involuntary repatriation may be seen as a form of refoulement, violating the principle of non-refoulement, which prohibits forced return to a location where individuals face persecution or serious harm.
  • CONCLUSION

In conclusion, the legal implications of forced return and deportation of war migrants are multifaceted and rooted in international and regional instruments designed to protect individuals from human rights violations. The Principle of Non-refoulement (PNR) serves as a fundamental safeguard, prohibiting the forced return of individuals facing risks such as torture, persecution, or other grave violations of their rights. This principle is enshrined in various legal frameworks, including the Refugee Convention, ICCPR, and other international instruments.

The guarantees in case of expulsion underscore the importance of due process, individualized assessments, and protection against arbitrary or discriminatory actions. States are generally prohibited from expelling or returning refugees or asylum seekers to territories where their life or freedom is threatened, with exceptions limited to cases involving national security risks or serious criminal convictions.

International law explicitly condemns collective expulsions, emphasizing the necessity of an objective examination of each individual’s case. The European Court of Human Rights defines collective expulsion as a process that lacks such individualized assessment and violates principles of non-discrimination.

Despite these legal safeguards, challenges persist, including administrative practices that may undermine the spirit of these principles. Legal advocacy, engagement with international human rights bodies, and adherence to due process are crucial in upholding the rights, safety, and dignity of war migrants facing forced return or deportation. In the broader context, the legal implications extend to issues of arbitrary displacement arising from conflicts, environmental factors, disasters, and development projects. The Guiding Principles on Internal Displacement provide a flexible framework for addressing the diverse reasons for internal displacement, emphasizing the need for a case-by-case approach.

Ultimately, adherence to these legal principles is essential not only for compliance with international law but also for promoting a humane and just treatment of war migrants. Ensuring that forced returns are carried out with respect for individual rights, procedural fairness, and non-discrimination is vital for upholding the principles of justice and protection in the face of complex challenges posed by armed conflicts and displacement.

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