Discriminate warfare: the military necessity - humanity dialectic of international humanitarian law

Schmitt, M. ORCID: https://orcid.org/0000-0002-7373-9557 (2012) Discriminate warfare: the military necessity - humanity dialectic of international humanitarian law. In: Lovell, D. and Primoratz, I. (eds.) Protecting Civilians During Violent Conflict. Routledge, London, UK, pp. 85-102. ISBN 9781409431251 doi: 10.4324/9781315602660

Abstract/Summary

This chapter examines the application of the definition of a refugee to people fleeing from civil wars or internal armed conflicts or violence. It deals with the role and scope of complementary protection, that is, protection that falls outside the Refugee Convention for victims of violence that is generalized or indiscriminate. The meaning of the term indiscriminate in the two areas of law includes international humanitarian law and refugee and asylum law. The chapter discusses the question of exclusion from refugee status of participants in outlawed forms of armed conflict and what consequences might follow from exclusion. Armed conflicts present refugee-receiving states with ethical dilemmas. If one is true to their values then they will pursue prosecution and other justice mechanisms over return to a place of persecution. This is true in a situation such as Sri Lanka where return of those offenders who are also witnesses to violations of human rights abuses by the Sri Lankan Government.