TNAG-1797-FCO40-2557-Hong-Kong-Vietnamese-refugees-repatriation--including-Opera-1988 — Page 32

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CHAPTER V

SPECIAL CASES

A. War refugees

164. Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refu- gees under the 1951 Convention or 1967 Protocol." They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Geneva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts.”3

165. However, foreign invasion or occupation of all or part of a country can result-and occasionally has resulted—in persecution for one or more of the reasons enumerated in the 1951 Convention. In such cases, refugee status will depend upon whether the applicant is able to show that he has a "well-founded fear of being persecuted” in the occupied territory and, in addition, upon whether or not he is able to avail himself of the protection of his government, or of a protecting power whose duty it is to safeguard the interests of his country during the armed conflict, and whether such protection can be considered to be effective.

166. Protection may not be available if there are no diplomatic relations between the applicant's host country and his country of origin. If the applicant's government is itself in exile, the effectiveness of the protection that it is able to extend may be open to question. Thus, every case has to be judged on its merits, both in respect of well-founded fear of persecution and of the availability of effective protection on the part of the government of the country of origin.

B. Deserters and persons avoiding military service

167. In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military

"In respect of Africa, however, see the definition in Article I (2) of the OAU Con- vention concerning the Specific Aspects of Refugee Problems in Africa, quoted in para- graph 22 above.

* See Annex VI, items (6) and (7).

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