Chapter III

War and Political Refugees

Subject to the conditions on the entry of immigrants from the war ravaged parts of Syria,

the international community as well as the local legislations of the member-states of the

international organizations, have imposed various guidelines on the classification of the asylum

seekers in their countries. Specifically, they are classified as either political refugee or war

refugees. The universally accepted definition of refugee is that it is a person who is outside the

country of his origin or nationality due to the fear of persecution. There are various reasons why

the individuals are persecuted in their own countries and it includes race, nationality, religion,

political opinion, etc.1 The admission of the refugees on other territories is a manifestation of the

fact that the refugee is unwilling to accept the security given to him of his own country and that it

could not end its persecution but rather support such insecurity. Other countries which abide to the

international norm which grants access to the refugees promulgate their own laws in providing

asylum or legal protection from extradition or deportation to the country of origin where

persecution is imminent. There are various reasons why the refugees seek shelter on foreign

territories and it could be fear of war and violence. This has expanded from the former normative

definition of refugee and asylum that the main purpose of which is to avoid persecution.

While one of the primary reasons why refugee is granted in the modern times is to avoid

persecution, it is noteworthy to indicate that the primary purpose of the 1951 Convention Relating

to the Status of the Refugees, which is rooted from the Universal Declaration of Human Rights

1948, is to provide protection to the persons fleeing events occurring after the Second World War2.

1
1951 Convention Relating to Status of Refugees
2
L Howie, Witnesses to Terror: Understanding the Meanings and Consequences of Terrorism (Palgrave Macmillan 2012)
Hence, under the modern statute which governs the right of the refugees, war is the primary

rationale for its grant. This was the period when the civilian population is affected severely by the

warring of states that their nationality, ethnicity, gender, or race, could be the basis of violence

directed towards3 them. The best evidence of which is the violence perpetrated by the WWII

Germany under the Hitler Regime where Jews and Homosexuals are murdered despite belonging

to the civilian population. In the same manner, these Jews and Homosexuals are being politically

persecuted despite acquiring German citizenship during such time.

In other words, the 1951 Convention has introduced a new classification of refugees (i.e.

War Refugees) when it was promulgated at about the same time of the promulgation of the

Universal Declaration of Human Rights. The circumstances at that time gave rise to the necessity

to expand the protection to be provided by the neighboring states to those who were affected by

the war. This was done so by the aforementioned convention by consolidating previous

international instruments which relates to the refugees. Corollary, the introduction of the 1951

convention has effectively codified the rights of the refugees at an international level with a wide

scope and with more definite protections. Article 1 of the 1951 Convention has defined the term

refugees which emphasized the protection for the persons from political or other forms of

persecution. Accordingly, it defines the refugees as “someone who is unable or unwilling to return

to their country of origin owing to a well-founded fear of being persecuted for reasons of race,

religion, nationality, membership of a particular social group, or political opinion”. However, the

convention specifically gave reference to the events which occurred prior to January 1, 19514.

3
Ibid.
4
New York Times, 'The Refugee Crisis Isn’t a ‘European Problem’' (New York Times, March 15 2015)
<https://www.nytimes.com/2015/09/06/opinion/sunday/the-refugee-crisis-isnt-a-european-problem.html?_r=0> accessed 4 June 2017.
 It may be inferred from such declaration that the refugees as identified, prior to January 1,

1951 are those who are affected by the Second World War. This inference is further strengthened

by the Article 1(B), par. a and b which indicates that the phrase “events occurring before January

1, 1951” refer to those affected by the events in Europe. The second paragraph (b) indicates that it

applies to the events which took place in Europe and elsewhere. Therefore, it means that the 1951

Convention has a universal scope because the definition of the refugees which it seeks to protect

are not limited to those in Europe. Because of the decolonization after the Second World War,

new groups of people have been formed while geographical restrictions render the protection to

the refugees as inutile or having strict requirements of qualification for admission, the 1967

Protocol removed the restrictions set forth by the 1951 Convention.

It has been established in the preceding paragraph that the 1951 Convention Relating to the

Status of the Refugees, as amended by the 1967 Protocol, has a universal application because the

definition of Refugee that it provides tackled not only the issue in Europe but also elsewhere, with

special reference to the events which took place before January 1, 1951. However, in recognition

that the problem of refugees and asylum seekers is not limited only in Europe as conflicts in other

regions have arisen, other conventions which specifically tackles the problem have been formed

including the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa and

the 1984 Cartagena Declaration for South American countries5.

It appears very simple from the literal contextual interpretation of the terms that war and

political refugees are different from each other. The War Refugees refer to those who seek

protection from the other countries because of fear of violence in their own countries while the

political refugees are those who are being persecuted because of their political beliefs. However,

5
United Nations, Treaty Series, vol.189 (1954), No. 2545.
controversy arise because the universally accepted definition of refugees, as cited above, appear

to not have made mentioned of those fleeing from their own countries because of fear of war.

Oppositions of the immigration and asylum policies of the governments suggest that those who

are fleeing from their own countries because of wars may not be considered as refugees.

In applying to the context of the Syrian refugees, there have been many controversies and

opposition with regards to their entry on the states which are willing to do so. Those who oppose

the entry of the refugees suggest that escaping from civil war in their own countries does not

qualify them for the asylum programs inasmuch as the immigration policies of those countries.

According to them, the entry of the immigrants from Syria constitutes a breach to their sovereignty,

with the European Union compelling the member-states to set quotas and accept refugees from

Syria. Moreover, the refugees from Syria are not covered by the provisions of the 1951

Convention.

Despite the strong opposition and the public opinion going against the acceptance, the entry

of refugees from Syria is qualified under the provisions of the 1951 convention specifically article

16. This proposition is grounded on the fact that the 1951 Convention gave specific preference to

the refugees resulting from the Second World War across Europe and some other places. Hence,

despite the absence of the word “War refugees” on the definition, it may be inferred from the

specific provisions of the convention that it applies to War refugees who are fleeing from their

own countries. Assuming arguendo that the war refugees are indeed, not protected by the 1951

Convention, it must be reiterated that the hostile forces in Syria, including the ISIS, have

persecuted non-Muslims in the region while the opponents of the government and the rebels have

6
Joan Fitzpatrick, "The International Dimension of U.S. Refugee Law" [1997] 15(1) Berkeley J. Int'l. Law 1, Berkeley Law Scholarship
Repository.
persecuted those against their political beliefs. From these two grounds only can the refugees

qualify to the program. However, the threat of terrorism and the massive number of refugees from

Syria is an exceptional circumstance that the states should take a hard review on its policies7.

Legal Protection granted to Syrian Refugees

There are several rights which the 1951 convention, and the subsequent 1967 protocol

relating to the status of the refugees which are vested towards the refugees. It compels the states

and international organization to extend the rights given to its own citizens to the refugees in

practicing and observing their religious beliefs including the rituals and holidays without

discrimination from the government and the people. In addition, the different ethnicity and culture

of the refugees have brought upon with them the different properties which has artistic value. This

must be respected by the states. It must also apply to the industrial properties of the refugees that

it must not be confiscated most especially if the properties are being used for their trade, craft, or

industry necessary for their livelihood. Moreover, the members of the drafting committee of the

1951 Convention recognizes the importance of education despite their displacement from the

country of their nationality or habitual residence. Hence, Article 22 thereof grants the right to the

refugees of the right to obtain the elementary education programs which are extended to the

nationals. They are also entitled for public relief and assistance as well as the protection from

unfair labor practices and lack of social security programs.

The above enumerated rights of the refugees in the country which grants them asylum

seems very minimal and are just and equitable. However, with the magnitude of the problem of

refugees in Syria that millions of them should be provide with these social services, the countries

7
S Yun, "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human Rights Law – The Case of the Optional
Protocol to the Convention on the Rights of the Child" [2014] 5(1) Journal of International Humanitarian Legal Studies 213–257
which would grant the asylum could be bankrupt and the burden will be passed to the taxpayers.

In addition to this, policing the refugees from Syria would be very hard because the police forces

in the countries which ought to accept them is only adequate for its current population. The

registration of the individuals coming from the country would exhaust a huge portion of the

taxpayers’ money while those who are not actually entitled for the asylum protection because they

are not persecuted but they are merely hoping a better future from well-off countries by employing

therein8. Hence, there are multiple adverse effects of the migration of refugees from Syria not only

from the Economy but also on national security. Which is why the opposition or the reluctance of

the EU member states in allowing the entry of refugees is excusable.

Arab’s Actions towards Refugee Admission

The policy of the Arab league in the acceptance of refugees have been lacking in the Arab

Charter on Human Rights as discussed above. However, the actions taken by the Arab League

member states have been scarcer despite the proximity of these nations and their shared culture

and religion with the refugees from Syria. This is according to Khalaf Al Habtoor which indicated

that the Arab League seem to have neglected the refugees in Syria and delegated the problem to

Europe9. Moreover, it was suggested that the association of nations in the Middle East and Africa

seem to have no plan to resolve the problem of refugees in Syria despite the fact that gruelling

human conditions have affected those who flee their country to seek protection from other states.

Further, it was puzzling how the secretariat of the Arab League seem to have not been taking action

in the least helpful ways which is to treat the refugees humanely. Members of the international

community, which are not member of the Arab League, particularly Russia have proposed the re-

8
See footnote 5
9
Khalaf Al Habtoor, ‘Arab League must step up to help solve the Syrian crisis’ (The National, September 26, 2015),
<http://www.thenational.ae/opinion/comment/arab-league-must-step-up-to-help-solve-the-syrian-crisis> accessed June 17, 2017
entry of Syria on the said international organization as a means to resolve the problem but the

group itself has been hostile about this idea. Despite of these, some of the member states of the

Arab League including the Egypt, Jordan, and Lebanon, have extended their aids to the refugees

from Syria. Ironically, these countries are the poorest members of the Arab League but they have

accepted the most number of refugees10. The criticism against the wealthy Arab states have been

growing.

During the breakout of the Second World War in Europe, most of the refugees have sought

asylum and safety on neighboring countries. It is surprising that the refugees of Syria do not seek

asylum on its neighboring countries which are members of the Arab League11. It is submitted that

the Arab League countries, especially the wealthy ones, have refused the entry of the Syrians

despite the fact that they are the benefactors and political backers in the international community

of the rebels fighting the Assad regime. This is why the refugees have chosen to take the very long

and dangerous journey to Europe where other wealthy states are refusing their entry. On the other

hand, the officials of the wealthy Gulf States particularly the Saudi Arabia and United Arab

Emirates are quick to refute the allegations that they have refused entry into their territories for the

migrants. According to the foreign minister of the UAE, the criticisms against them does not

correspond to the reality since they have welcomed around 100,000 Syrians within the country and

have granted them working visa while the Kingdom of Saudi Arabia claimed that it received

around 2.5 Million Syrians since the beginning of the conflict almost six years ago. It was also

added by the local media in Saudi that it has granted hundreds of thousands of free education grant

to Syria. Further, an official of the GCC claimed that it has funded millions of dollars to the three

10
Cohen, Tom, and Jim Acosta, “U.S. Increasing Military Forces in Jordan.” (CNN.com, January 21, 2013)
<http://www.cnn.com/2013/06/21/politics/us-jordan-troops> accessed June 17 2017.
11
Beatrix Schwarzer, Transnational Social Work and Social Welfare (Routledge, 2016, p. 112).
countries which have accepted the Syrian refugees. However, these statistical data may not be

verified independently12.

The allowance of entry is not the primary problem anymore. There are many countries in

the Arab League which have accepted the refugees from Syria. However, aside from being subject

to strong government regulation and censorship, the public condemnation and discrimination have

taken its toll with the refugees given second class citizen status, feared by public, and suppressed

of their political ideals. This evidence supports the idea that the majority of the population are

against the entry of asylum seekers in the wealthy states. The governments of these countries may

likewise revoke their working or residence visas anytime at its will13.

One of the primary reasons why the refugees from Syria are not welcome in the Arab

Countries is the fact that the Arab governments do not recognize the rights of the refugees as their

leaders have refused to sign the 1951 international Convention on Refugee Rights. In fact, even

those countries such as Lebanon and Jordan which accepts many refugees from Syria, they do not

recognize the legal concept of refugees because they are not signatories to the 1951 Convention14.

They are merely called ‘guests’ by these countries despite the provisions of basic services and aid

unto them. As a result of the non-conformity of the Arab Nations, not necessarily the Arab League,

to the 1951 Convention, they are not mandated to provide permanent settlement to the refugees

within its territories as mandated by the UNHCR.

Political stability and the national security of the countries which have accepted the

refugees from Syrians have been compromised because of their open policy for the refugees. This

12
Khalaf Al Habtoor, ‘Arab League must step up to help solve the Syrian crisis’ (The National, September 26, 2015), <
http://www.thenational.ae/opinion/comment/arab-league-must-step-up-to-help-solve-the-syrian-crisis> accessed June 17, 2017
13
Denis MacEoin, The Arab States and the Refugees (Gates on Institute, September 16, 2015)
<https://www.gatestoneinstitute.org/6502/refugees-arab-states> accessed June 17, 2017.
14
Ibid.
serves as a justification for the wealthy Arab nations, as well as the European states, in refusing

the entry of the Syrian refugees in its territories15. For example, in Lebanon, the domestic tensions

have been aggravated by the influx of Syrians within the country. As an evidence of this political

repercussion, there has been a spillover of the conflict in Syria in Sidon where clashes between

political supporters have ensued. Meanwhile in Turkey, arms smugglers have taken advantage of

the situation and it created a conducive environment for the extremist groups to gather strength

while opposition and criticism to the Turkish Prime Minister are increasing16.

These countries have attempted to minimize if not to totally avoid such problems through

a system of registration which was conducted with the participation of various NGOs and

governmental agencies. However, this task is herculean considering the large quantity of the

refugees requiring immediate entry into the territories. These problems have continuously justified

the refusal of the Arab League member states for the entry of Syrian refugees in their territories.

EU’s response to immigrant influx

The member-states of the European Union’s actions are not much different from how the

neighboring Arab States responded in the ongoing crisis and the influx of refugees from Syria.

This caused the criticisms of the EU’s leadership, vision, and solidarity and this problem

highlighted that the human rights principles, which is embodied in the charter of almost all

international organization, is only a lip service for the members of the EU. Such criticism is raised

by the Human Rights Watch which cited that the failure of the response of the EU member states

15
Charbonneau, Louis, “Exclusive: Iran Steps up Weapons Lifeline to Syria’s Assad – Envoys.” (Uk.Reuters.com, March 14, 2013)
<http://uk.reuters.com/article/2013/03/14/uk-syria-crisis-iran-idUKBRE92D11W20130314> accessed June 17, 2017.
16
Model Arab League, ‘Special Committee on Syria – Background Guide’ (NCUSAR.org, 2015) < https://ncusar.org/modelarableague/special-
committee-on-syria-background-guide/> accessed June 17, 2017.
may be rooted to the mismanagement and politicization of the boat migration in 2015 when over

a million migrants of asylum seekers have travelled to the Eurozone by sea17.

According to this Human rights organization, EU’s response to the influx of migrations in

2015 may be characterized by disorganization and chaos, the policies to resolve the problem in the

following year have been wrong headed and abusive of the rights of the refugees. This is because

of the fact that instead of drafting, ratifying, and promulgating policies in the region in order to

provide better protection and basic services to the refugees, it appeared that the member-states, as

well as the EU itself, have moved for the restriction of the entry of the asylum seekers in the

country. As a result of these policies, the asylum seekers were diverted to other territories that

could provide them protection, outside of the EU region. This is almost analogous to the acts of

refoulement which is strictly prohibited by the international Jus Cogens18. For example, EU have

delegated the burden to Turkey and the Libyan authorities but it has not provided adequate

resources and cooperation to the local authorities in these territories.

The member states, through the municipal laws which are operating within their territories,

appear to have rolled back from promoting the rights of asylum seekers, as it formerly preached,

but instead moved for the deterrence of the entry of these refugees, a patent violation of human

rights. In addition to this, the imposition of the arrival restrictions on the families of the Asylum

seekers is far from its commitment to the right to family reunification19. Furthermore, the member

states have imposed sanctions and restrictions to the right to travel and abode of the refugees since

there are EU directives which include measures to punish the refugees who are moving from

moving from one EU country to another. Therefore, it was suggested by the Human Rights Watch

17
Human Rights Watch, EU Policies Put Refugees at Risk (HRW.org, 2017) <https://www.hrw.org/news/2016/11/23/eu-policies-put-refugees-
risk> accessed June 17, 2017.
18
Ibid.
19
P Seale, ‘What is really happening in Syria’ [2012] 31(5) The Washington Report on Middle East Affairs 17–18.
that the EU is merely providing temporary or subsidiary protection for the asylum seekers as their

rights they are entitled to are not granted fully, and in fact, some of which are actually violated.

It has been stated above that the neighboring countries of Syria have blatantly refused the

entry for the refugees coming from the latter. This is because of the adverse impact of the entry to

the political and economic aspect. This is why the refugees, having no recourse to be granted entry

on the nearest countries from their country of origin, have ventured to take the risk in entering the

Eurozone which remains in panic because of the sudden influx of refugees. This prompted the

members of the European Union to impose control policies on migration to limit the number of

the individuals entering their respective territories20. This is why, another criticism on the policies

and directives of the EU, is the shift of the attitude of the organization directs towards regulation

rather than improving respect for human rights. An evidence thereof is the fact that the EU forged

with countries outside of the jurisdiction of the organization to intensify the flow of migration to

Africa, Middle East and Asia and diverting them away from Europe. Another evidence of the lack

of interest of the EU to respect human rights and to provide asylum is its failure to implement the

relocation mechanism scheme which seeks to equitably share the responsibility of the arrivals of

Asylum seekers. As of 2016, only around 7000 refugees had been relocated21. This number is large

but is insignificant to the efforts to relocate and to provide better protection and social services to

the refugees considering that there are million refugees distributed in some countries.

Mentioned above is the policy of EU which outsources the provision of the protections and

rights to the refugees. One of which is the EU-Turkey Deal which binds Turkey to accept the

refugees who returned from Greece after being rejected entry to the European territories

20
A Taheri, "Has the Time Come for Military Intervention in Syria?" [2013] 35(4) American Foreign Policy Interests 217–220.
21
R Hinnebusch, "Syria: From 'Authoritarian Upgrading' to Revolution?" [2012] 88(1) International Affairs 95–113.
particularly on Greek islands. The organization, being a resource rich and politically potent being,

promised in return to grant billions of euros in Aid to Turkey and visa liberalization to the Turkish

citizens. It also promised Turkey of its accession to the EU. However, contrary to the non-

refoulement policy of the international norms, it struck in its deal the commitment of the two states

to create a safe zone in Syria where the displaced refugees could be returned from Turkey.

The premise from which the EU have used to justify the deal is that Turkey is a safe third

country or first country of asylum. However, this is not true in the case of Turkey because it has

imposed limitation on its ratification of the 1951 Convention that non-Europeans cannot be fully

recognized as refugees22. The reference of Turkey, during that time, is the migration of the

Europeans affected by the Second World War. Hence, considering the limitations on the

implementation of the 1951 Convention of Turkey, the Syrians who are non-Europeans, may not

be fully recognized as refugees with their rights not granted unto them23. As a result thereof, the

nature of the protections extended to them are only temporary but there are many obstacles

including registration, education, employment, and health care. Various rights are not respected as

a result of such limitation. While the Turkish authorities have initiated positive acts for the

protection and welfare of the Syrian refugees particularly on its grant of work permits to the latter.

However, the government can only provide work permits to a minority population of Syrians.

Turkey has been generous in welcoming around 2.5 million Syrian refugees unlike the Arab

League and the European Union States but it has started limiting the entry of more Syrian refugees.

Also cited by the Human Rights Watch, the EU’s deal with Turkey has benefited the

refugees very little but has adverse effects and damage to the refugees. Including in this policy is

22
Ibid.
23
N Van Dam, The Struggle for Power in Syria: Politics and Society under Asad and the Ba'ath Party (I. B. Tauris, 2011).
the Greek authorities’ formal policy of automatic detention to those arriving by sea on the Aegean

islands. These individuals remained in custody or in unsafe camps on islands while awaiting their

asylum applications. Approximately 60,000 migrants and asylum seekers are stranded in Greece 24.

Aside from the deal with Turkey, the EU has continuously manifested its non-willingness

to accept the entry of Refugees from other parts of the world. This means that the rejection of

application or the diversion of the abode of the refugees to third party countries outside its

jurisdiction is not discriminatory against the Syrians. It is centered in the EU foreign policy that

their obligations as a receiving country may be delegated to other countries and the same may be

justified through aids. This is evident on its actions towards the application of Afghans for asylum

on these countries, being the second largest population of asylum seekers in EU countries. There

are around 200,000 new asylum applications as of 2015 and the number is quickly increasing. The

European Union opted to reject the application despite the hostilities in Afghanistan that the

serious fighting between the forces poses the lives of the refugees to great risks. While refugees

from Afghanistan could seek refuge on Iran and Pakistan, they face inhospitable conditions and

subjects them to abuse, discrimination, and forced deportation. Hence, they have no other choice

but to take their chances in EU countries. To legally expel the Afghans from EU countries, the

latter has signed a declaration with Afghanistan on migration cooperation which compels the

Afghanistan to facilitate the return of Afghans, which were refused of asylum by the EU countries

regardless of the grounds. In return, EU has committed to send around 5 billion euros in form of

aid in the next four years.

24
See footnote 17.
 The EU’s non-commitment to the protection of the refugee rights served a concrete proof

and message to the international community that migration policies for the asylum seekers could

be commodified, outsourced, or blocked and therefore, prompting the rest of the world to close its

doors to refugees. In other words, it has set a dangerous precedent and bad example to other states.

As an example, the Kenyan government decided to shut down the Dadaab camp which is the

largest refugee camp in the world, and has pushed for the expediting of the repatriation of the

Somali refugees. Meanwhile, Pakistan has pushed for the repatriation of a large number of Afghan

refugees before the end of the year. Lebanon, which has accepted millions of refugees, have

likewise imitated the idea of “safe zones” inside Syria where the refugees will be repatriated. All

of these examples, as triggered by the EU’s non-commitment and blatant defiance of the

international norms, are all tantamount to refoulement25.

Behind these criticisms and allegations of inaction, The European Union have taken steps

to reform its legislation with regards to the provision of asylum in order to create a Common

European Asylum System (CEAS). The idea of CEAS arise from the right to asylum and

prohibition of refoulement as established by the 1951 Convention as mentioned above as well as

the New York Protocol. However, the efforts of the Union itself have failed because the member

states have imposed restrictions against free entry or passport-free travel throughout Europe.

Border controls, justified by sovereignty and national security, have been established. Therefore,

the idea of CEAS quickly faded away and became virtually impossible.

Special focus on the international community and from the European Union are the asylum

policies of Italy and Greece, the point of first entry for asylum seekers from Syria. Nevertheless,

it is disappointing that the Greece, as the first point of entry for Asylum seekers from Syria, have

25
Ibid.
been found by the European Court of Human Rights to have serious deficiencies in its asylum

system. The problem has been coupled with the provisions of the Dublin regulation which poses a

key structural problem of CEAS since it places an undue burden on countries of first entry. While

the purpose of the Dublin regulation is noble and necessary for the protection of the rights of the

member-states, it remains burdensome to the idea of CEAS which requires a consolidated

cooperation between the same. The purpose of the same is to avoid the abuse of the system by the

applicants, that only a single member state may review the application provided the criteria that:

(a) the existence of a family in a Member State; (b) having a visa or residence permit in a Member

State; and (c) entry into a Member State, whether illegally or not26.

Refugee protection in EU through case laws

The European Convention of Human Rights, as described in the earlier part of this paper,

grants no right to asylum for the refugees. While there are regulations and directives from the EU

itself, it is not necessary that it is binding among all EU Members. There are, however, many cases

of human rights violation of the asylum seekers by the accepting states. There are cases of illegal

detention, maltreatment, torture, refoulement, or inhumane treatment or punishment which are

tried and decided by the European Court of Human Rights27. Typically, violations of the article 3

of the ECHR have been taken cognizance by the said court where the national authorities, or the

states themselves have violated human rights of the refugees. Of course, the decisions of the

European courts set precedents and tender a declaratory relief to the rights of the migrants and

refugees.

26
Regulation (EU) No. 604/2013
27
Library of Congress, Refugee Law and Policy: European Union
(Library of Congress, 2017) <https://www.loc.gov/law/help/refugee-law/europeanunion.php> accessed June 17, 2017.
 Most of the time, the cases have been decided in favor of the Somalian asylum seekers

including Hirsi Jamaa and Others v. Italy28. In this particular case, the asylum seekers were

apprehended in international waters. Italian authorities returned them to Somalia without due

process. The court ruled that Italy should take cognizance of the application of the Somalian

refugees because returning them back to Somalia by outright rejecting their application is a

violation of non-refoulement clause of the international agreement.

Meanwhile, in the case of M.S.S. v. Belgium and Greece29, it tackled the living conditions

of the refugees in the reception centers in Greece. The detention facilities in Greece was shared by

twenty other detainees with limited access to restroom facilities. This has been ruled by the court,

through its Grand Chamber, that Greece has indeed violated article 3 and 13 of the Convention on

Human Rights while flaws on the asylum procedures have been highlighted. Belgium was likewise

held liable because it ordered the return of the refugees to Greece as the country of first entry and

exposed them to the poor conditions in Greek detentions.

Another illustrative case is the case of Conka v. Belgium which fled from Slovakia because

of violence and threats directed at skinheads. There has been a refusal of the local police force to

protect them. Belgium refused their application because the lack of sufficient evidence which

qualifies them as refugees. As asserted by the applicants, Belgium has violated the protocol 4,

article 4, of the Convention on Human Rights30 which prohibits the collective expulsion of aliens.

The court noted that prior to the deportation orders of the country, there must be “reasonable and

28
Hirsi Jamaa and Others v. Italy, App. No. 27765/09
29
Grand Chamber Decision, Case of M.S.S. v. Belgium and Greece, App. No. 30696/09 (ECHR Jan. 21, 2011),
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx? i=001-103050, archived at https://perma.cc/P9GT-HTBU.
30
European Convention on Human Rights
objective examination of the particular case of each individual alien of the group.” In this case, the

national authorities of Belgium erred in ordering the repatriation or collective expulsion of aliens.
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