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Persecution in the Fog of War: The House of Lords' Decision in Adan

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Abstract

International law requires that a person have a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group in order to be recognized as a refugee. That is, under the Convention Relating to the Status of Refugees, there must be a nexus between the danger faced by the refugee and one of the five Convention-recognized reasons for persecution. However, in a 1998 decision of the House of Lords in the United Kingdom, the House of Lords concluded that a man fleeing clan warfare in Somalia could not meet the nexus test because the claimant, who indisputably faced danger for reasons of his clan membership, faced no greater danger than the dangers faced by members of other clans. This conclusion was incorrect, however, because differential impact is not required by the Refugee Convention.In addition, the House of Lords improperly applied a different standard in the case of the claimant as a result of the state of civil war in Somalia, reasoning that the Refugee Convention does not apply to those caught up in civil war where law and order have broken down and every group seems to be fighting some other group. But review of the language of the Refugee Convention and its drafting history shows that the House of Lords was mistaken in concluding that fighting between clans engaged in civil war cannot constitute persecution for reasons of a Convention ground.Fleeing from civil war is not enough by itself to satisfy the requirements of the Refugee Convention, but in some circumstances war-related danger can give rise to a valid claim to refugee status. And there is no requirement that an applicant for refugee status be more at risk than other persons or groups in his or her country of origin. The relevant question is whether the Convention ground is causally connected to the applicant's predicament.

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... Fleeing from civil war alone is not enough to meet the Refugee Convention definition, but war-related violence that is linked to one of the its five reasons can give rise to a valid claim to refugee status. 15 Since much violence in civil wars is motivated by an intention to harm particular ethnic, religious, or political groups, many war refugees can find protection under the Refugee Convention. ...
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The legal relevance of the “urban refugee” concept in the Middle East and Africa stems from the practice of practicing different forms of refugee status determination (RSD) in rural as opposed to urban areas. Urban refugees are usually subject to rigorous individual adjudication, while rural refugees are typically recognized on a prima facie basis. This difference in procedure has no basis in the substance of refugee law, and it marginalizes urban refugees in two key ways. First, in Africa and the Middle East, refugee status recognition is used by host governments to prevent refugee integration, to force refugees to live far from population centres, and to transfer responsibility for their welfare to international agencies. Second, individualized RSD procedures in wide use by the United Nations generally lack key fairness safeguards, increasing the risk that genuine refugees will be wrongfully rejected. This phenomenon means that urban refugee populations will often be systematically undercounted, and will include a significant number of de facto refugees who are in fact refugees in danger of refoulement, but whose applications were rejected and who thus have no access to the protection and resources otherwise targeted at refugees.
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