There is a sub-category of refugee status that is little known in France: constitutional asylum. This protection can be granted by Ofpra (Office for the Protection of Refugees and Stateless Persons) or the National Asylum Court (CNDA) to "any person persecuted because they have fought for freedom." This is thanks to paragraph 4 of the foreword of the 1946 Constitution.
Constitutional asylum mainly concerns opponents of political or religious extremism, journalists or intellectuals fighting for freedom of the press or freedom of expression, as well as women fighting for their rights. These latter are among "the main beneficiaries of the Court's decisions granting constitutional asylum since 2001," reports the CNDA.
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The protection provided to the constitutional refugee is identical to that of a classic refugee. The most notable difference between these two categories lies in the fact that, unlike the classic refugee status which is based on the Geneva Convention, constitutional asylum is specifically based on the French constitution.
This was an Iraqi activist who risked being assassinated if she returned to her country of origin because of her opposition to the Islamic State terror group. Like her, at most a dozen people each year have been granted the status of constitutional refugee since 2001, the Court points out.
"We are now almost in the situation of unconstitutionality since we should have to examine the asylum application of the 'freedom fighter'. But they must first be qualified as such. But Ofpra is not informed if the applicant comes, for example, from a safe third country or if he has already passed the Dublin Regulation. It is therefore extremely rare to succeed in asserting the status of constitutional asylum seeker since the applicant hardly ever passes the first step of the complex administration procedure".
"These are the initial grounds for asylum in France, but it still remains very elitist," says Sadik. "Constitutional asylum has lost its important position today, especially because the criteria for this status overlap with that of the secondary protection".
Sadik acknowledges that this status is essentially a little obsolete now. "A person can invoke constitutional asylum to escape the Dublin regulation [this stipulates that the first country trodden on within the European Union must be the country of the asylum application]. For example, I accompanied a Burundian journalist who had already obtained a Belgian visa but who wanted to live in France. In his case, constitutional asylum worked whereas with conventional asylum he would have been forced to return to Belgium", says Sadik.
The council was formed to look after the welfare of Mukti Bahini members, who fought for Bangladesh in the Bangladesh Liberation War in 1971, under the Ministry of Liberation War Affairs.[4] The council also regulates the usages of the term Bangladesh Liberation War to prevent exploitation.[5] In 2015 the council decided to give Birangonas, women who were raped in the Bangladesh Liberation war, the status of freedom fighters including the associated benefits.[6]
On 23 January 2017 Bangladesh High Court asked the government to explain why asking the council to investigate and removed "fake freedom fighters" is not illegal under the Jatiya Muktijoddha Council Act, 2002. The government formed local investigative units for this purpose on 12 January 2017.[7]
Nearly all Somalis are Sunni Muslims, though there is a very small Christian community whose members generally do not practice their religion in public. Conversion from Islam is illegal in some areas, and suspicions of conversion can draw societal harassment throughout the country. Despite containing clauses that promote religious freedom and outlaw religious discrimination, the provisional constitution recognizes Islam as the state religion and forbids the promotion of any other faith.
Individuals enjoy some freedom of expression in more secure areas of the country, but criticism of powerful figures in the state and society can draw reprisals, and social media posts that touch on sensitive political or religious topics are subject to criminal punishment. Open debate is severely restricted in areas controlled or threatened by the Shabaab.
Forced and child marriages are widespread, and the Shabaab impose forced marriages with their fighters. Individuals can face strong societal pressure to marry or not marry within certain clans. Female genital mutilation (FGM) is extremely common despite a formal ban.
Child labor and trafficking in persons for the purposes of sexual exploitation or forced labor are common. Refugees and internally displaced people are particularly vulnerable to exploitation. Children are abducted or recruited to serve as fighters by the Shabaab and to a lesser extent by government and militia forces.
Towing the line of other Bharatiya Janata Party (BJP) ruled states, the Maharashtra government also decided to accord freedom fighter status to all those who were jailed during the Emergency imposed in 1975 by the then Prime Minister Indira Gandhi. The decision was taken in a state cabinet meeting on Tuesday.
War time popular satire programme 'Charampatra' host MR Akhtar Mukul, filmmaker and actor Shubhash Dutta, singers Timir Nandi and Fakir Alamgir were among those who received the status for their outstanding contribution to boost the morale of the freedom fighters as well as that of the persecuted.
The existence of a non-international armed conflict triggers the application of international humanitarian law (IHL), also known as the law of armed conflict, which sets limits on how the parties may conduct hostilities and protects all persons affected by the conflict. IHL imposes obligations on both sides of the conflict equally, though without conferring any legal status on the armed opposition groups involved.
The level of intensity of the violence is determined in light of indicators such as the duration and gravity of the armed clashes, the type of government forces involved, the number of fighters and troops involved, the types of weapons used, the number of casualties and the extent of the damage caused by the fighting. The level of organization of the armed group is assessed by looking at factors such as the existence of a chain of command, the capacity to transmit and enforce orders, the ability to plan and launch coordinated military operations, and the capacity to recruit, train and equip new fighters. I should stress that the motivation of an armed group is not considered a relevant factor.
The parties to non-international armed conflicts are at minimum required to comply with Article 3 common to the Geneva Conventions and with rules of customary IHL. These rules guarantee humane treatment to each person that finds him- or herself in the power of the enemy and require that persons wounded in the hostilities, including wounded enemy fighters, be collected and cared for without discrimination.
I should stress that the ICRC, in keeping with its special status under international law and as a neutral and independent humanitarian organization, does not in any way get involved in the investigation and trials of war crimes, this being the sole responsibility of States.
No. The term "prisoner of war" refers to a special status afforded by the Third Geneva Convention to captured enemy soldiers ("combatants") in international armed conflicts only. Prisoners of war cannot be prosecuted for acts that are lawful under IHL (for example, for having attacked enemy forces). In contrast, in a non-international armed conflict, IHL does not prevent the prosecution of captured rebel fighters for the mere fact of having taken up arms, although IHL encourages governments to grant the broadest possible amnesties at the end of an armed conflict, except for persons suspected of, accused of, or sentenced for war crimes.
Host States are primarily responsible for upholding the civilian and humanitarian character of asylum. They should disarm all persons carrying weapons on their territory, identify fighters and combatants, and separate them from civilian arrivals (including refugees). They should also take other measures to ensure the safety and security of refugees on their territory, whether they are hosted in camps or not. These may include measures to prevent military recruitment, including of refugee children.
If individuals permanently and genuinely renounce military activity, they may have their claims to international protection assessed (as former fighters or combatants). Such claims must be assessed on an individual basis (not prima facie) and must consider any exclusion concerns.
Any measures taken by a host State to maintain the civilian and humanitarian character of asylum must respect the State's legal obligations under international human rights law, international humanitarian law, neutrality law (where applicable), refugee law, and domestic law. In particular, they must:
It is crucial to understand and analyse the composition of groups of arriving or arrived refugees and asylum-seekers, and notably whether fighters or combatants (including women or children associated with armed forces or groups) are among them. Ongoing conflict analysis should consider inter alia: the parties to an armed conflict; their structures; the fragmentation and allegiances of armed non-State actors; past or current violations of international human rights law or international humanitarian law (IHL); and the reasons for flight.
Depending on the circumstances, key issues for advocacy might include: the location of camps and settlements; the need for disarmament at border points or in-country; the identification of and separation of fighters and combatants; and the overall safety and security of refugee camps or other refugee-hosting areas, including urban centres.
Depending on the ability and willingness of host country authorities to protect the civilian and humanitarian character of asylum, UNHCR should understand the mandates of other organizations, decide its own level of involvement, and request other actors to support its advocacy efforts or activities. Particularly complex situations (for example, the presence of active fighters or combatants in a host State) will require a collective engagement by the UN Country Team or Humanitarian Country Team as a whole, rather than by individual UN entities. In such situations, UNHCR is expected to be a catalyst and should mobilize relevant stakeholders, including regional or international peace operations, and keep the UN Country Team or Humanitarian Country Team informed and up to date on situations of concern.
UNHCR should usually coordinate with the ICRC, given its mandate, notably with respect to detained fighters and combatants. Several UN entities can also make significant contributions in accordance with their mandates and in the light of their specific expertise and capacities. For example: e24fc04721
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