Excluding Justice: The Dangerous Intersection between Refugee Claims, Criminal Law, and ‘Guilty’ Asylum Seekers
"Excluding Justice: The Dangerous Intersection between Refugee Claims, Criminal Law, and 'Guilty' Asylum Seekers" 2012 24 International Journal of Refugee Law 37.
23 Pages Posted: 15 Aug 2012 Last revised: 18 Aug 2016
Date Written: 2012
The 1951 Refugee Convention contains an ‘exclusion clause’ stipulating that individuals who have committed certain serious crimes – including war crimes and crimes against humanity – are not entitled to the protections associated with being a legal refugee. Each time the United Nations Refugee Agency (UNHCR) or a resettlement country conducts an evaluation to determine whether an asylum seeker meets the convention criteria, the exclusion provision is considered.
Principles developed in the criminal context figure prominently in exclusion assessments, a practice that is logical and convenient, both because the language of the provision mandates referral to relevant international instruments and because the entire evaluation is based on determining whether the claimant has committed a crime. There are, however, significant challenges associated with transposing legal ‘tests’ and ‘frameworks’ directly from one paradigm to another, and caution must be taken to ensure that underlying principles of fairness and justice are not compromised.
This article critically evaluates the consequences of applying jurisprudence developed in the criminal context to exclusion assessments. Focusing on the UNHCR’s practices in situations of mass influx, it argues that a failure to consider individual and mitigating circumstances, while simultaneously relying on criminal principles that assume these factors form part of the analysis, can lead to unprincipled decisions and extreme injustices. It further suggests that this problem can be remedied through a re-formulation of the proportionality aspect of the UNHCR’s exclusion process.
Keywords: refugee, exclusion, war crimes
Suggested Citation: Suggested Citation