Who is a Refugee?

This concept is fraught with a lot of misunderstanding especially in Kenya. Many Kenyans believe that a refugee is one exclusively running away from conflict. Consequently those not coming from countries that are perceived to be at war do not fall under this category of persons. It will be surprising that those who hold such a view would not agree that asylum seekers from Ethiopia or Eritrea should be considered as refugees. However this is an inaccurate view of the subject.

The term refugee in international law has a definite meaning. The meaning is governed by several legal instruments.  The first is the Geneva Convention of 1951 as read with the 1967 Protocol. These define a refugee as any person who owing to a well founded fear of persecution on the basis of race, religion, political opinion, nationality or membership to a particular social group is outside the country of his nationality or habitual residence and is unwilling or unable to present himself of the protection of that country. That is basically a paraphrased definition.

Owing to the wars/struggles of liberation that ravaged the continent (Africa), there was need to include in the definition those people running away from conflict. The Organization of African Unity (as it then was) came up with an additional criteria for defining a refugee. Thus they came up with a uniquely African document that borrowed the definition of the Geneva Conventions and added people fleeing from events that cause public disorder in either the whole or part of the country and those fleeing external aggression, occupation and foreign domination.

Flowing from this move by the OAU, there is the question on whether people fleeing natural calamities are included in this definition. While the mainstream humanitarian actors are of the opinion, I think different. The OAU refugee convention allows refugees fleeing from events seriously disturbing public order in any part or the whole of the country they are fleeing from. Therefore if a tsunami or hunger ravages a country and is deemed to seriously disturb public order, people fleeing from such countries should be considered as refugees.

Closer home, Kenya has a Refugees Act which was enacted in 2006. The definition therein is the same as the one provided under the OAU convention. It basically has a domestication effect as well as provide the day-to-day management of refugees. Owing to the promulgation of the Consitution of Kenya, 2010 acts of Parliament have to undergo reviews. The Refugees Act is no exception. I do not see the definition changing and in any case Kenya as a signatory to the Geneva Conventions and the OAU convention which according to article 2(6) of our constitution form part of our laws.

Defining the term refugee is important to the realization of the right to seek asylum. Under the human rights rubric, it is a human right to seek and receive asylum. Thus defining the term refugees aids in identifying such persons that may need assistance in seeking asylum. It should be noted that this status is not permanent. This subject will be looked into in subsequent posts.


Protected Persons under International Humanitarian Law

International Humanitarian Law is meant to inter alia protect persons from the savagery of warfare. These protected persons are described in the four Geneva Conventions and their Additional Protocols. Broadly they are categorized here for purposes of convenience as Combatants/other legitimate participants in hostilities, Civilians and the Humanitarian Core. Each is examined briefly.

Combatants and other legitimate participants in hostilities

Combatants and those who are considered legitimate participants in hostilities are that group of individuals that get protection in special circumstances. These circumstances include when they are injured or sick (Geneva Convention I, article 12), shipwrecked (Geneva Convention II, article 12) or fall into the hands of the enemy (Geneva Convention III, article 4). Other than that, they can be targeted as legitimate military objectives and their deaths are lawful (Additional Protocol I, article 43[2]).

Combatants are members of the armed forces of a Party to the conflict excluding medical personnel and chaplains (AP I, article 43[2]). Article 13 common to GC I and II provide protection for those who are not necessarily members of the armed forces Party to a conflict thus the other legitimate participants in hostilities.

Such include militias, volunteer corps and organized resistance movements provided they observe the listed rules under clause 2 paragraphs (a)-(d). It also includes people who accompany the armed forces such as war correspondence, supply contractors etc. Finally those who spontaneously take up arms on approach of the enemy without having time to organize themselves into regular armed units (levee en masse) are also considered for protection.

Those who parachute from aircrafts in distress are also included under article 42, AP I. They are to be allowed to reach the ground of territory controlled by the adverse Party to the conflict and given an opportunity to surrender.


This group is considered to be the most vulnerable. They are thus protected at all times and in all circumstances.

They are protected under article 4 & 13 of Geneva Convention IV, AP I arts.10 & 50 and AP II art.7. Article 4 confines the term protected persons as those from a Party to the conflict, who is a signatory to the convention and is conducting hostilities with the Party in whose hands the civilians fall into.

Article 13 covers the entire population of a country in conflict. It (GC IV) does not define who a civilian is but article 50 of AP I does this by describing them as what they are not. It refers one to GC III article 4 A (1); (2), (3) and (6) as well as Article 43 of AP I. There are also special categories of civilians recognized such as refugees and stateless persons (GC IV, art. 44 & AP I, art.73), women and children (GC IV, art.50 & AP I arts.76-77) and journalists (AP I, art.79).

Humanitarian Core

This group is concerned with the alleviation of pain and suffering during armed conflict. They include medical personnel, religious personnel and humanitarian relief personnel. They are protected by the conventions and Additional Protocols. For detailed information see GC I arts.24-26, GC II arts.36-37, GC III art.33, AP I, arts.15 & 71(2) & AP II art.9.

Please note that this is just a mind map on protected persons and that one should read the texts of the Geneva Conventions and their Additional Protocols to come up with a comprehensive list.