War conflict is a violent clash between group of nations which leads to loss of life and displacement. This war conflicts leads to violation of Rights of individuals and create uncertainty in Society. Legal aid is providing legal assistance to the one who cannot reach the court of law to seek justice because of their economic conditions. In simple words, it means Legal assistance.
When the world is in war and everything at that time messed up then the legal aid will be shield to protect your rights. This will navigate the legal maze and fight for what is yours. The interplay between war conflict and legal aid is complex and multifaceted thing. It is even tough thing to protect rights of an individual.
Legal Challenges Faced By War Refugees
- War refugees face lot of problems once their home nation is under war. They won’t be able to claim their own property because their Land documents would have lost during the war and it will tough for civil status recognition. The court only believes in documents but the refugees would have lost them during war.
- Seeking for asylum would be challenging. Proving prosecution which is a key requirement to seek refugee status becomes tough because of Lack of evidence. The UNHCR examines the Refugee Status Determination process to ensure legal assistance to asylum seekers. So that there would be fair trial.
- There will be lack of emotional support as refugees may have lost their family during war. The reunion of family is too challenging during the situations like war conflicts.
- Refugees in many countries are illegally detained and they will be stateless. In countries where state goes in control of military after war, the refugees will be treated as slaves.
Legal Initiatives for Refugees Fleeing Away From War Zone
International Legal initiatives:
- 1951 Refugee convention and 1967 protocol: These documents define who should be considered as refugee and their Rights. Article 14 of the states the Right to legal Aid to Refugees and ensure fair prosecution.
- Universal Declaration of Human Rights (UDHR): This is not directly binding but Article 6 gives right to fair trail and Article 7 defines how a refugee should be treated and freedom from torture, harsh punishments. These two articles from UDHR are relevant to Legal Aid to war refugees.
- International Covenant on Civil and Political Rights (ICCPR): This treaty is only binding on countries which have ratified it. It ensures no refugee would be disadvantaged from accessing Legal assistance.
Article 14: Right to fair trail and Legal Aid
Article 2: Right to non-discrimination.
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): This convention ensures the refugee women protection and protection from gender based violence.
Article 14: States should ensure women and girl right to justice which includes Legal assistance.
- Convention on the Rights of the Child (CRC): This convention deals with refugee children’s rights.
Article 12: Right of a refugee child to hear for legal proceedings.
Article 19: Right of child to access Legal Assistance.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: This Convention prohibits a country from sending back of refugees from their country to refugees own Nation in case of that nation may threaten the refugees.
Not only these conventions but also many International human rights bodies like UNHRC play a crucial role in promoting legal aid to refugees and always remind states to frame laws to ensure Rights of the refugees.
- Local and National Initiatives: NGO’s implement legal awareness programs to spread Rights of refugees and there are many successful examples where NGO’s succeeded to provide legal assistance to refugees in war zones.
One of the best examples is The Kivu Legal Aid Project (KLAP) in the Democratic Republic of Congo – during kivu conflict KLAP which is funded by UNHCR made many efforts and succeeded in providing legal assistance by stopping illegal detention and also by ensuring them to claim their legal rights. These efforts successfully made conflict free kivu. These is only one example, there are many successful projects of many NGO’s in many states.
Legal Obstacles Faced By Displaced Populations
- Access to Justice: War refugees would be unaware of their rights available to them and the process to seek legal assistance. This may be due to difference in language and legal system of the host country. Displaced population can’t afford fee for legal assistance. Even if they can afford, its taught to find legal service providers or Pro Bono Workers to help them.
- Language barriers and cultural differences: Language barrier is the big problem to many displaced populations. Displaced population can’t communicate with their legal representatives because of language difference. Even the major problem is with laws followed there. Maybe the country of displaced population is of Civil law country but where he is refugee, that country may be Common law country. This can create tense situation, these may lead to confusion in understanding procedure in the courts.
- Security concerns and threats to legal professionals in war zones: In war zones, no one have guarantee of life. Attacks on legal professionals from Armed forces and local groups to prevent them from representing effected people can create fear and emotional weakening of legal professionals.
If legal professionals stop working in few areas of cases, then the people will suffer to get legal assistance. Mental and emotional health of individual gets disturbed due to the burden placed on them to represent their clients facing safety risks.
Role of NGOs in Providing Legal Aid during War Conflicts
NGOs helps the refugees in documenting their problems during this war time and will advocate them before National and International bodies to protect their rights. NGOs assist refugees with legal assistance in legal proceedings, helps to claim asylum and NGOs play huge role in reunification of family cases.
NGO’s play a vital role in spreading legal awareness and essential legal information about Refugee’s legal Rights. Only NGO cannot manage all these, it will work in collaboration with local human rights activists, government and International organizations.
Challenges to Ngo’s In Ensuring Legal Aid during War Conflicts
There is high security risk to volunteers and logistical challenges in war zones because there will be restrictions on movement of people and communication of the same. During war times there may be unavailability of funds to NGO’s and this leads to decrease in legal aid services. Mental and emotional disturbance may occur to legal aid working in war zones because of no proper availability of sources to finish basic need like food and shelter.
Extraditions and Role of Right to Legal Representation
International framework of extradition:
Legal process: In diplomatic way, the State in which accused committed crime requests to the state currently accused is resident through diplomatic channel for trial. This requires the both states to sign a treaty. The requested state attains and detains the accused as per their own laws.
International treaties:
- European Convention on Extradition (1957): This treaty establishes common principles of extradition and currently applies to 47 European countries.
- Inter-American Convention on Extradition (1981): Explains procedure and limitations of extradition and currently applies to 23 American countries.
- UN Convention against Transnational Organized Crime (2000): It is broader framework which even includes Extradition principles in detailed.
Right to Legal Representation during Extradition: Legal Representation is the shield against injustice and it will be the voice of the one who is placed in the trail illegally. Right to legal Aid should be given to the accused to prevent innocent from extradition, where he is sent forcefully to other land.
Indian Laws on Legal Aid
Legal Aid is in Article 39A of Indian constitution, legal aid is neither a gift nor a reward; rather, it is a need. According to the Supreme Court, without a national legal service program that offers free legal services to the poor, it is not feasible to ensure their constitutional and statutory rights, protect them from injustice, or convey the advantages of the legal system to them. The Legal Services Authority Act of 1987 was passed as a result of this pressure.
Landmark Cases on Legal Aid
State Of Haryana v. Darshana Devi
The Honorable Justice Krishna Iyer ruled in this case that no poor person should be denied access to the justice system just because of the court fee and refusal to apply.
Khatri v. State Of Bihar
The session judges in this case were required by the honorable justice P.N. Bhagwati to tell the accused of their entitlement to free legal assistance and to let the court know if anyone is unable to afford a lawyer to defend them because of poverty or indigence.
Sheela Barse v. Union of India
The Hon’ble Court in this decision decided that Article 21 of the Indian Constitution’s implied guarantee of a quick trial is a basic right guaranteed to every individual.
Conclusion
War is evil to this earth and it creates chaos in society and Refugees will face many problems in other countries. Seeking asylum becomes difficult due to lack of evidence. There may be illiterates who are unaware about Legal Aid, they would face big problem during War. Local and national initiatives by NGOs play a vital role in providing legal assistance, raising awareness, and advocating for refugee rights as we have seen in Kivu Legal Aid project – A great initiative by Kivu’s NGO.
Access to justice is still a challenge due to language barriers, cultural differences, and lack of awareness on legal rights. Security risks and threatens by Armed forces or local groups to legal professionals in war zones can threaten Legal Aid. Legal representation during extradition should be necessary for an individuals from unjustly being sent to another country for trial. Treaties like the European Convention on Extradition establish strong principles to ensure fair proceedings during extradition.
If we talk about India, Article 39A of the Indian Constitution guarantees legal aid as a fundamental right. The Legal Services Authority Act of 1987 and landmark cases like ‘State of Haryana v. Darshan Devi’ have strengthened legal aid infrastructure for the impoverished.
The Way Forward
Efforts should be made continuously and should not step up to strengthen the legal framework to ensure Legal Aid to all especially in war situations. Every organization should work in collaboration to bring peace. Support NGO’s work during war situations in critical zones by sending funds. Refugees should be treated nicely without being tortured. Still we need strong framework for refugees. Raising awareness on Legal Rights of an individual will help to protect individual’s rights.
Endnotes
- State Of Haryana v. Darshana Devi (1979) 2 Scc 236.
- Khatri v. State Of Bihar1981 Scr (2) 408, 1981 Scc (1) 627
- Sheela Barse V. Union of India (1988) 4 S.C.C. 226.
The article is written by Patenge Chathrapathi. He is a student of Semester 1, BA.LLB (HONS.), at Damodaram Sanjivayya National Law University, Visakhapatnam.