Causality and the Laws of War, Terrorism and Asylum

There is a direct causal relationship between and among war, terrorism and asylum that is too often ignored by legal analyst and scholars. Each is governed by separate branches of international law: international humanitarian law; international criminal law; and international refugee law. While it is commonly understood that war mass produces forced displacement and refugees. It is less recognised that terrorism is directly correlated to war or armed conflict and that it accelerates the pace and numbers of those who are forcibly displaced. The broad scope of these three branches of public international law need to be examined separately but also together if we are to better and more fully understand the direct causal reality of these three interrelated phenomenon, if we ever hope to address these most serious, devastating, and trauma-filled global challenges.

The Illegality of War

For the last several years the world has been witnessing wars or armed conflicts across all the world’s hot spots, including, Russia and Ukraine; Hamas and Israel; Myanmar; Sudan; Yemen, to name but a few. With all the wars or armed conflicts that are taking place in the world today the average person could be forgiven for thinking that war or armed conflict was legal. However, this is not the case. War has not been legal since the 1928 Kellogg-Briand Pact that declares the State Parties ‘condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy’ and requires that ‘the settlement or solution of all disputes or conflicts … by pacific means’.  

And, once again, building on the experience of the League of Nations, the United Nations (UN) was established in 1945, following World War II, to end “the scourge of war”. The use of force is constrained by the UN and it can only be used legally if sanctioned through its Security Council (UNSC) under Chapter VII. The use of force is also only legal in the exercise of self-defence, Article 51 of the UN Charter. But States must then get the approval of the UNSC subsequently. The other legitimate possible use of force, although contentious, is seeking to achieve self-determination, as outlined in Article 1(2) of the UN Charter and in UNGA Resolution 2105, (XX), 20 December 1965.

The use of force in an armed conflict or war is governed by the Laws of War or International Humanitarian Law (IHL). Failure to adhere to IHL in the context of armed conflict or war can lead to criminal charges of war crimes, crimes against humanity, genocide, aggression, and so on. The International Criminal Court has jurisdiction to deal with the most serious international crimes, including, the supreme international crime, the crime against peace or aggression.

There have been and there are also special UN tribunals that are established to prosecute serious international crimes as subsidiary organs of the UNSC. The use of force outside the approval of the UNSC is illegal and an obvious breach of the UN Charter. The ultimate sanction for a UN member State for not adhering to the prohibition on the use of force can be expulsion by the UN General Assembly upon the recommendation of the Security Council. See Article 6 of the UN Charter. However, the prospect of any permanent member of the UN Security Council agreeing to be expelled by the UN General Assembly is remote indeed.

Terrorism – The Use of Extreme Fear to Affect Change

Terrorism is a serious international crime. Individuals have been convicted of terrorism before the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal of Rwanda. States have criminalised terrorism through legislation and/or have incorporated it within their Criminal Codes. However, it does not fall within the jurisdiction of the International Criminal Court. States have not agreed on a definition of what constitutes terrorism, and it has yet to be incorporated within the 1998 Rome Statute of the ICC.

Although there is no comprehensive convention on terrorism there are, nonetheless, 19 sectoral conventions and protocols regarding specific types of terrorist activities: hijacking, hostage taking, bombings, civil aviation (seizure of aircraft, unlawful acts at airports), nuclear terrorism, etc. Consequently, terrorism is variously defined by States which can produce legal anomalies and divergencies across State jurisdictions. Without a common international standard of what constitutes terrorism, then, the old adage, “One man’s terrorist is another man’s freedom fighter”, will continue to apply.

Asylum – The Provision of International Protection to Those Who Have a Well-Founded Fear of Persecution…

There are legal definitions of who is a refugee that fall into a number of categories:

International

1951 Convention relating to the Status of Refugees and its 1967 Protocol relating to the Status of Refugees.

1967 Declaration on Territorial Asylum

Regional

1969 Organisation of African Unity Convention Governing Specific Aspects of the Refugee Problem in Africa

1984 Cartagena Declaration on Refugees Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama

2011 European Union Qualifications Directive

States

States have their own legislation with respect to asylum; for example, Canada’s 2001 Immigration and Refugee Protection Act.

The international refugee protection regime is a patch work of international, regional, and national instruments that define who is a refugee. The regional refugee rights instruments have expanded the legal definition of who is a refugee. They apply to those who ‘owing to external aggression, occupation, foreign domination or events seriously disturbing the public order‘. This expands the legal definition of refugee to include those who are fleeing war or armed conflict.

Not all States are State Parties to the 1951 Convention and/or the 1967 Protocol. Canada is a State Party to both international refugee rights instruments. The USA is only a State Party to the 1967 Protocol and not the 1951 Convention. There are only 149 States that are State Parties to the 1951 Convention and/or 1967 Protocol. Many States do not want to be State Parties to these international instruments because they see them as Eurocentric documents and do not deal with the realities of the situation in their countries or within their region. India and other Southeast Asian countries are not State Parties to these international refugee right instruments.

The Essential Relationships Among and Between War, Terrorism, and Asylum

War generates forced displacement. People flee the death and destruction of wars. The statistics confirm that 52 percent of the world’s refugees and other persons in need of international protection come from just three countries: Syria; Afghanistan; Ukraine. Statistics also demonstrate that nearly 90 percent, 87 percent, of the world’s refugees and other persons in need of international protection come from a mere 10 countries. They all have been embroiled in protracted armed conflict, save Venezuela. The correlation between war or armed conflict and forced displacement is obvious and ought to be acknowledge when addressing any issues with respect to refugees and others who are forcibly displaced.

There is also a strong correlation between war or armed conflict and terrorism. The START Global Terrorism Database (GTD) indicates that terrorist incidents are concentrated geographically across the globe: North Africa and the Middle East; The Sahel Region of Africa; Yemen; Afghanistan; Pakistan; India; Philippines. These are all regions and countries that are experiencing protracted armed conflict.

The Institute for Economics and Peace (IEP) produces the Global Terrorism Index (GTI) that ranks countries according to their terrorist activities. The top 25 countries on this index are all experiencing, with a few exceptions, protracted armed conflict.

The relationship between war, terrorism, and asylum is a close and intimate one. People are forcibly displaced due to wars, but, terrorism, serves as an accelerant or catalyst for forced displacement. When people are terrified, they flee rapidly and in higher numbers.

The relationship between and among these three variables is direct and causal: war generates terrorism, and both result in forced displacement. Terrorism is a serious international crime but not the only serious international crime that is perpetrated in situations of war or armed conflict: war crimes; crimes against humanity; genocide; and crimes against peace or aggression occur commonly in war. The laws of war are breached each day of an armed conflict or war. It is a gross conceit to hold that the worst atrocities and serious crimes are not part of modern warfare.

People flee wars because they do not wish to be killed or maimed by the combatants’ crossfire or be their collateral damage. They also flee because of the “atrocity crimes” that are the routine of modern warfare, where citizens are deliberately targeted by the combatants.

This is why the scourge of war must be eliminated, once and for all. Working to this goal not only requires the full application of International Humanitarian, Criminal, and Refugee Law but we must recognise the direct causal relationship between these three global challenges and how these three branches of public international law not only interact with each other but can be combined to further the complete eradication of war.

Dr James C. Simeon is an Associate Professor at the School of Public Policy and Administration, Faculty of Liberal Arts & Professional Studies, York University, Toronto. He is currently on sabbatical at the Lauterpacht Centre for International Law, University of Cambridge. Dr Simeon is also a non-resident member of King’s College and a life member of Clare Hall, University of Cambridge. His research interests are in International Refugee Law, International Human Rights Law, International Humanitarian Law, and International Criminal Law.

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