War or persecution are some of the problems faced by displaced persons.
The aim of this paper is to make visible a reality that is talked about, but not enough, and, in doing so, to analyse the international regulations and the temporary solutions that are applied.
Migrants, internally displaced persons or refugees and stateless persons move around the world leaving the land of their birth, forced by war, hunger, individual or collective political persecution, social or economic pressure, lack or scarcity of resources or their lack of exploitation, the threat of attacks on their freedom or life, and discrimination based on their origin, race, sex, colour, age or religion.
In this critical environment, the non-respect of human and humanitarian rights has become a feature of today's society and a fact that is easily tolerated by humanity, which can happen because the problem has not been exposed or has not been dealt with in the right way.
There is no region in the world that is not affected by some kind of conflict that generates displaced people.
The current situation in Afghanistan is not specific to that country and, secondly, it has an impact on the world, since every armed conflict that develops anywhere on the planet has an impact on all of humanity, whether we want it to or not.
War in all its forms is a human decision, as is peace.
Whenever a political or economic conflict arises, human beings choose to resolve it through war in all its forms. From hand-to-hand armed conflicts in the trenches to the cold war, with old or modern methods, from the confrontation of opponents on foreign soil to today's sophisticated methods, such as the use of automated technology or the production of cyber attacks, or what is known as the new cold war or cyber warfare.
Nothing is left to chance by man. The more modern the method, the less costly it is and the fewer soldiers die.
Meanwhile, it is the civilians who are not directly involved in the conflict who must bear the consequences.
The war in Afghanistan dates back to the 1970s and has been fought by different sides, resulting in the internal and external displacement of the population
Externally displaced persons, so-called refugees, have had to seek asylum in neighbouring countries such as Pakistan, India, or Iran.
Those who are displaced or those who take refuge often become stateless as they lose their own nationality as a result of displacement or conflict in their own countries.
These people live in groups, but they are alone, adrift. These three types of citizens have in common that they do not have a decent roof over their heads, that they do not have education, work, food, that their rights are not recognised.
In a convulsed world, where what matters most is oneself, these people are part of a problem that seems to be alien to us, but the pandemic has taught us that everything that happens in this world has repercussions for us.
A displaced person is a person who has to flee their town or city within or outside their country, and when they do so outside their country they become a refugee. They are distinguished from a migrant because a migrant is someone who arrives in a country other than his or her place of origin to settle there permanently or temporarily, but it does not mean 'per se' that he or she is fleeing from some kind of conflict and often those who migrate do so for work reasons.
Both migrants (legal or illegal) and refugees have crossed an international border whereas IDPs have not and remain within their own state.
By the way they move, they put their own lives and those of their families at risk, causing thousands of deaths, both immediate and mediated. Sometimes they do so by land, walking or by means of precarious public transport or using private or other people's private means of transport.
Many other times, they travel by water using homemade boats or rubber dinghies, as in the case of Cubans, Haitians, or Syrians.
Recently, we have witnessed Afghans fleeing in and out of military planes, as happened at Kabul airport when the Taliban took over the Afghan capital.
In short, they are a reality that happens every day and a problem that people try to avoid talking about, but which deserves definitive, immediate, and palliative solutions to the needs that their condition creates.
Let us bear in mind that refugees are not the only ones who are burdened with the difficulties of non-compliance with their rights. Although they are the notoriously affected party, it is true that all the actors involved suffer from it. From the state that is unable to protect its citizens and forces them to migrate, it is the state that suffers the consequences of its own behaviour. That state begins to experience a situation of constant complaints from the rest of the civilian population, and along the way, it shows poor management of the people's resources, and shows a lack of respect for the rights of its citizens, all issues that end up being made visible by other states and other citizens, actions that give it a particular imprint when it comes to its international policy project.
The state that receives the migrant or refugee is also part of the conflict, because it has to implement effective solutions to contain them, recognise their rights and promote effective ways or mechanisms to put them into practice, because the mere enunciation of the law is never enough.
Many countries produce refugees, and many situations encourage them, not just war, not just Afghanistan.
More than 82.4 million people are estimated to be refugees worldwide, and more than half of them are children or adolescents under the age of 18.
An example is the case of Palestinian refugees, who since 1948 have been forced to move across the territory to rural areas or even to take refuge in countries such as Syria, Jordan, Lebanon, Egypt, Colombia, Chile, or Argentina, because neighbouring countries have been involved in other conflicts which in turn have generated new displaced persons and/or refugees.
It is estimated that there are at least 6.6 million Syrian refugees worldwide and at least another 6.7 million displaced, as a result of the 9-year conflict. Turkey is one of the main countries that has already received more than 3 million Syrians, as have countries such as Lebanon, Jordan, Egypt.
Another example is the Somali conflict that has its origins in 1991, the Yemeni conflict since 2015, the Iraqi conflict since 2013, the Turkish-Kurdish conflict since 1984, which also includes countries such as Lebanon and Syria, which also have their own internal and external conflicts, such as Lebanon since 2011; to cite more global conflicts that produce refugees, displaced persons and legal and illegal migrants, the conflict in the Persian Gulf since 2009, which includes countries such as Iran, Iraq and Saudi Arabia.
Returning to Afghanistan, it is worth noting that it has more than 2.8 million refugees in the world, many of them hosted in India and Pakistan, and another 2.9 million are internally displaced. Another well-known and long-standing conflict is that between the North and South Koreas, which dates back to the 1950s, just to mention some of the conflicts in Africa, Asia, and Europe.
In the Americas, the Cuban conflict that began with the coup d'état of 1952 and has deepened with the Revolution of 1959 to the present day. The conflict in Chiapas in Mexico since 1983, and in Venezuela, which has been immersed in a profound political, social, economic, and humanitarian crisis since before it was officially recognised in 2010.
Without going any further, the Latin American dictatorships of the 1970s generated displaced persons and refugees in all parts of the world.
In the case of the Venezuelan people, they have been displaced within their own territory and also abroad, seeking asylum in countries such as Colombia, Brazil, Peru and Argentina. It is estimated that there are at least 5.4 million refugees and migrants.
These statistics reveal that crises and conflicts are prolonged over time, that the consequences spread and involve other countries, and that those conflicts do not cease to require urgent solutions, more and better efforts.
They do not begin and end at a specific point in time; they develop in tandem with multiple events.
This has generated the attention of international organisations specialised in human rights and the creation of new organisations and foundations to deal with this problem, which is difficult to prevent.
The foundations of human rights necessarily begin to be laid in war conflicts or political, social, economic, cultural, or racial crises.
We have witnessed revolutions, crises or wars, and the need to protect human interests and turn them into legally protected goods is more easily seen.
In the development of these conflicts, societies must face problems of impunity, related to the rights to health, freedom of expression, and constant violations of the rights of women, children, adolescents, and the elderly.
To this, we must add the conflicts that arise between the countries that produce refugees and those that receive them, as in the case of Turkey, Russia and Syria.
The efforts of international organisations or specialised foundations are not enough to remedy the conflict without the voluntary participation of the states involved.
Refugees need a state to receive them, a place to develop their lives, to strengthen their social ties, to educate and educate themselves, to be able to eat, to work, to protect their health and to exercise their other rights.
Without positive action, bills of rights will become mere declarations or expressions of wishes.
There are conceptual differences between human rights and humanitarian rights, as well as instrumental differences, since the legal instruments that cover them are different, but this does not mean that they are mutually exclusive. If humanitarian law is to be applied, human rights are more relevant than ever and must therefore also be considered.
While humanitarian law aims to protect victims by seeking to limit the suffering caused by conflict, human rights protect the human person and promote his or her full development in situations of war or peace, they never cease to apply.
As we have already said, many refugees are affected by an international or non-international armed conflict. In this case, refugee law is closely related to humanitarian law, and whenever war is involved, the Geneva Conventions of 1949 and the Additional Protocols of 1977 apply. The First Geneva Convention protects, during wartime, the wounded and sick of armed forces in the field, while the Second Geneva Convention protects, during wartime, the wounded, sick and shipwrecked of armed forces at sea.
The Third Geneva Convention applies to prisoners of war and the Fourth Geneva Convention protects civilians, including in occupied territories.
Among the provisions on migrants, refugees and internally displaced persons we find applicable, beyond human rights charters and conventions, the 1951 Convention relating to the Status of Refugees, the 1990 Convention on the Protection of the Rights of Migrant Workers and Members of their Families, which highlights the concept of "migrant worker" by extending it to any person who is going to perform, performs or has performed a remunerated activity in a State of which he or she is not a national, including the category of "frontier worker" as a migrant worker who retains his or her habitual residence in a neighbouring State, to which he or she normally returns every day or at least once a week for the purpose of carrying out his or her work activity.
Article 7 of this Convention is clear that it promotes respect for human rights when it states that States Parties undertake, in accordance with international human rights instruments, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the Convention by affording them equal treatment, without distinction of any kind such as sex, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic condition, property, marital status, birth or other status and, in article 8, it clearly speaks of the human rights of migrant workers and members of their families.
Specific instruments include the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, the European Convention on the Legal Status of Migrant Workers, the 1951 Convention Relating to the Status of Refugees, which is the foundation of international refugee law, which defines a "refugee", and the 1951 Convention Relating to the Status of Refugees, which is the basis of international refugee law.
On the other hand, the 1967 Protocol Relating to the Status of Refugees is a separate instrument from the 1951 Convention, which together cover three central points to be considered: on the one hand, the obligations of States, including the obligation to cooperate with international organisations such as the UNHCR, and to facilitate the task of supervising the application of the Convention.
The Cartagena Declaration of 1984, which took place in Cartagena (Colombia) at a conference attended by government representatives and eminent Latin American jurists to discuss the international protection of refugees in the region, and which eventually adopted the OAU Refugee Convention in September 2001, also applies. The Declaration recommends that the refugee definition be broadened to include persons who flee their home country "because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal strife, massive violation of human rights or other circumstances which have seriously disturbed public order".
The 1967 Declaration on Territorial Asylum adopted at the UN General Assembly of that year, which recalls that the granting of asylum "is a peaceful and humanitarian act and, as such, cannot be regarded as unfriendly by any other State" and further specifies that it is up to the state granting asylum to qualify the grounds for asylum.
Although international law has not specifically defined the institute of asylum, it is related to the protection that a country offers to a refugee in its territory.
Finally, it should be noted that international human rights conventions form part of the normative catalogue applicable to migrants, displaced persons, refugees, and stateless persons.
Refugees should enjoy a set of basic rights that are granted to them as persons guaranteed by international human rights law and national law, as well as specific rights related to refugee status.
Thus, in relation to the guidelines on the treatment of refugees and displaced persons, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment plays a central role, which confers protection against refoulement of a person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture and which does not require, as the 1951 Convention does, that protection be linked to fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.
On the other hand, it is also preponderant the application of the Convention on the Rights of the Child, to which almost all States of the world are parties, and which applies to all children without discrimination, including refugee and asylum-seeking children, which determines that every child seeking refugee status should benefit from protection and humanitarian assistance in the enjoyment of the rights set forth in this Convention and in other treaties to which the State is a party.
Asylum is one of the applicable institutes par excellence since "in case of persecution, everyone has the right to seek and to enjoy asylum in any country". It means, at the very least, a basic protection against expulsion or refoulement when life or liberty is threatened.
Repatriation, voluntary or forced, has become one of the most commonly applied measures.
For example, in 2017 the United States repatriated more than 1700 Cubans, in 2020 around 49 Cubans were repatriated, and so far in 2021 more than 800 have been repatriated.
Internal or external displacement has amplified and is putting international human rights and humanitarian systems to the test.
Current statistics indicate that displacement is set to increase and that the solution of repatriation will increase.
The policies of international agencies such as UNHCR, while isolated, will not be effective if states as a whole do not take responsibility for protecting the world's citizens.
It must be considered that humanitarian law does not exclude the application of human rights, thus most of the rights essential to the protection of refugees coincide with the fundamental rights enshrined in the 1948 Universal Declaration of Human Rights, and it will be essential that the right to life, liberty and security of the displaced are recognised, to liberty and security of person, the right to seek and enjoy asylum, the guarantee against torture, cruel, inhuman or degrading treatment or punishment, against slavery and servitude, the guarantee against arbitrary arrest and detention, the guarantee of privacy and intimacy against arbitrary interference with privacy, family and home. Freedom of opinion and expression, the right to education and to take part in the cultural life of the community must be recognised.
The principle of non-refoulement should be integrated into the national legislation of each country.
Adhering to conventions, treaties and protocols is important, but it will be even more important to change the mindset of limiting protection to their nationals. We are all citizens of the world and deserve to be treated with the same respect.
Mariel Suárez Criminal Judge, expert in Digital Rights, Triple Magister in Cybercrime and Cybersecurity and expert in Computer Forensics, guest lecturer at foreign universities, author of several publications and contributor to Sec2Crime.