Refugees’ Right to Physical Security: What does it Practically Mean?

The Law

When one reads the term “right to physical security”, a basic understanding of what it means usually flirts with the idea of safety. However, in the legal world, it is always a safer option to have a well-defined right, as then one knows what a right entails and when it is being infringed. Usually, the rights of refugees are contained and defined in the 1951 Refugee Convention.

Although it is paramount to the whole concept of refugee law, the refugees’ right to physical security is not codified in the 1951 Refugee Convention. According to James Hathaway, a leading scholar in refugee law, it is exactly because the right is paramount that the drafters assumed that it did not need to be codified. Hathaway believed that the drafters thought that the remaining refugee rights – if properly enforced – will give effect to their right to physical security. Unfortunately, the failure to expressly provide a provision on the right to security affects the responsibility of the state in making sure that right is respected. As the right to physical security is not explicitly stated in the law, the state can exonerate itself of responsibility; it gives the state discretion to decide whether to protect refugees or not. Lack of an express provision on the right to security is thus a loophole in the law and has affected the ability of the state to ensure physical safety of refugees.

Yet, scholars have attempted to define this right, and also to enforce it through other rights. These attempts will be explored in this blog in an effort to understand how best to give effect to refugees’ right to physical security.

Responsibility for Security of Refugees

Generally, the responsibility for the security of citizens is vested in the sovereign state. As refugees clearly are not afforded the same security in their state of origin, they go to other states to seek protection. Thus, the presumption is that refugee protection in terms of physical and legal security must be the responsibility of the host state. This obligation is usually shared with the United Nations High Commissioner for Refugees (UNHCR) since that is what the UNHCR mandate is founded on. The involvement of the UNHCR means that the contracting states are required to cooperate with the office of the UNHCR or any other agency of the UN, so as to facilitate the state’s duty of supervising the provisions of the convention. Ensuring the security of refugees requires joint cooperation between the state and the UNHCR. However, the primary responsibility rests on the state which needs to cooperate with UNHCR to meet international standards. This responsibility is also said to be shared with refugees as they have duties in the host state to conform to that state’s laws, regulations, and measures taken for the maintenance of public order.

What Does the Responsibility for Security Entail for the Host State?

The failure to define, and codify, the security of refugees makes it almost impossible to establish what the safety of refugees entails. Due to the lack of codification, we have to turn to other instruments of international law and their interpretation by various scholars to understand the content of this right. As the right to physical security is an important human right, people have turned to international human rights treaties to see if there are rights that covered this lacuna. In the International Covenant on Civil and Political Rights (ICCPR) – which applies to every individual “irrespective of their reciprocity, nationality or statelessness” – Articles 6,7 and 9 address the element of physical security. The UN Human Rights Committee made it clear that Articles 6,7 and 9 apply to aliens as they “have an inherent right to life, protected by law, and may not be arbitrarily deprived of life. They must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment… Aliens have the full right to liberty and security of person.”

Article 6 of the ICCPR: Right to life

Under Article 6 of the ICCPR, the right to life is inherent and is recognised to be “the irreducible core of human rights”. That means it flows simply from a human being existing. The right prohibits acts of intentional killing by state authorities except for specific situations. The right to life “is not to be understood as a negative right directed solely at the State, but rather (as a right) that calls for positive measures to ensure it”.

Interestingly, the United Nations Human Rights Commission (UNHRC) affirms that this right imposes some duties on states. Besides preventing and punishing the “deprivation of life” through criminal activities, states must also ensure that their own security forces do not commit such acts. The UNHRC also added that there was no need for an intention to kill for a finding of breach of right to life. States would also be held liable if they appointed unofficial agents in roles which require them to exercise control over refugees, and then proceeded to ignore the deprivation of lives that these agents might commit. In fact, the right would still be infringed, even if killings were not a direct result of official acts if the state had failed to put into place appropriate measures to protect the persons at risk. However, before concluding that this right has been breached, a careful balancing exercise must take place as the committing of these acts are matters of utmost gravity. Thus, Hathaway has put together a practical “equation” to judge whether an infringement has been committed. As the right to life may be breached either through an act or omission, he believes that there should be an inquiry on whether:

1. The state intended on taking the refugee’s life, directly or indirectly, for example through starvation; and
2. The state did not show determination in effectively responding to risks to life which it was aware of.

These situations must be characterised by “elements of unlawfulness and injustice, as well as those of capriciousness and unreasonableness”. The next breach to the right of physical security which this post will look at, is also a breach of Article 7 of the ICCPR.

Article 7 of the ICCPR: Freedom Against Torture, Cruel, Inhuman or Degrading Treatment

Understanding what torture entails is crucial to comprehending how a breach of Article 7 of the ICCPR can amount to an infringement of the right to physical security. Article 1 of the Convention against Torture dictates that an act may only be defined as torture if the following four criteria are satisfied:

1. The act in question must result in severe physical or mental pain or suffering.
2. The act which causes the pain or suffering must be intentional.
3. There must be a specific motivation for the intentional infliction of harm, such as – but not limited to – extraction of a confession, intimidation, punishment, or discrimination (but not including lawful punishment).
4. The act must be committed by, or under the authority of, a public official.

As one can see, these requirements provide a relatively high threshold, and it is often hard to satisfy all of them through the same act. This is why refugees are most commonly regarded as being victims of inhuman or cruel treatment rather than torture. Per Hathaway, actions are “inhuman or cruel” if they meet most, but not all, criteria for torture. States may be found to have participated in cruel or inhuman treatment where they have not responded in an appropriate fashion to grave risks which they were aware of. That risk need not come directly from the state authorities themselves, as “inhuman treatment” may include official actions that contribute in a material way to the exposure to harm.

Beyond acts which are torture or cruel and inhuman, Article 7 also prohibits treatment or punishment which is “degrading”. Known as the “weakest level of violation of Article 7”, an act is considered degrading when it is intended to humiliate the victim, or when it shows a disregard for their humanity. According to the European Court of Human Rights, degrading treatment “humiliates or debases an individual showing a lack of respect for, or diminishing, their human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance”.

Article 9(1) of the ICCPR: Right to Liberty and Security

This right broadly talks about the right to liberty and security of person before dictating that no one should be subjected to arbitrary arrest or detention. To understand why the right to liberty and security of person was deemed important enough to be in the ICCPR, one must look into the context behind it. At the time of the discussions on the contents of the ICCPR, the French representative insisted on the inclusion of the right due to its importance during the French Revolution. The United Nations General Assembly defined the right to security as “the right to protection of the law in the exercise of the right to liberty. Liberty and security are two sides of the same coin.” This definition was endorsed by the UNHRC which added: “States are under an obligation to take reasonable and appropriate measures to protect persons under their jurisdiction.” However, the attitude of practitioners when dealing with article 9(1), in the context of refugees, has been to focus on the right to not be arbitrarily detained.

Through these three rights: the right to life; the right to freedom against torture, cruel, inhuman or degrading treatment; and the right to liberty and security, scholars and lawyers have tried to protect refugees’ right to physical security. Yet, the right to physical security is of utmost importance, as the lack of physical security is one of the foundational grounds to the existence of refugees.  For the international community to be able to hold a state accountable when it infringes the law, the law must be clear. Until this right is made clear through definition, legal scholars need to keep working around its absence through the promotion of the three human rights discussed here.