Protecting the Protectors or Victimizing the Victims Anew? 'Material Support of Terrorism' and Exclusion from Refugee Status in U.S. and European Courts

18 Pages Posted: 25 Nov 2012 Last revised: 26 Jun 2013

See all articles by Tom Syring

Tom Syring

Max Planck Institute for Comparative Public Law and International Law

Date Written: November 25, 2012

Abstract

In recent years, states have adopted numerous anti-terrorism laws based on concerns for national security, aimed at keeping persons with connections to terrorist networks out of the respective countries, or facilitating the forced return to their country of origin.

While keeping the homeland safe represents a legitimate objective, the occasional stringent laws enacted have often had the side-effect of negatively affecting persons in need of protection. As a result of anti-terrorism provisions such as the so-called material support bar included in the USA PATRIOT Act and similar legislative approaches in other countries, even refugees have been prevented from receiving asylum or protection from refoulement, often in direct contravention of the provisions of the Refugee Convention and other applicable international law.

The trouble with anti-terror legislation is that there neither seems to be a generally agreed-upon definition of terrorism, nor of what constitutes “material support” to acts of terrorism. As a result, some legislation based on concerns for national security includes language that excessively broadens the scope of what may constitute terrorism, thus, leading to exclusion from refugee status of numerous persons who otherwise would have a legitimate claim to protection under the Refugee Convention.

Furthermore, in some jurisdictions, the legislative concept of “material support” has assumed an ever-expansive posture, as also exemplified by the 2010 U.S. Supreme Court decision in Holder v. Humanitarian Law Project.

This article seeks to identify the core provisions contained in various European and U.S. national security and asylum laws leading to exclusion from refugee status, and compare the various approaches taken with a view to definitions of “being involved in terrorism” and “providing material support to terrorism,” and the legal consequences attached to either finding, that is, the level at which the exclusion from refugee status bar is set.

Keywords: National Security, Material Support of Terrorism, USA PATRIOT Act, Exclusion, Refugee Status, U.S. Supreme Court, Holder v. Humanitarian Law Project, European Court of Justice, Federal Republic of Germany v. B & D, Convention Against Torture, Non-refoulement, M.S.S. v. Belgium and Greece

Suggested Citation

Syring, Tom, Protecting the Protectors or Victimizing the Victims Anew? 'Material Support of Terrorism' and Exclusion from Refugee Status in U.S. and European Courts (November 25, 2012). ILSA Journal of International & Comparative Law, Vol. 18, No. 2, 2012, Available at SSRN: https://ssrn.com/abstract=2180461

Tom Syring (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg
Germany

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