Serious International Crimes, Human Rights, and Forced Migration

James C. Simeon, James C. Simeon

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000539363
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume elucidates and explores the interrelationships and direct causal connection between serious international crimes, serious breaches to fundamental human rights, and gross affronts to human dignity that lead to mass forced migration.

Forced migration most often occurs in the context of protracted armed conflict of a noninternational nature where terrorism, fierce fighting, deep animosity, tit-for-tat retaliation, and "rapid dominance" doctrine all lead to the commission of atrocity crimes. Accordingly, this volume makes a valuable contribution to the literature and to the cause of trying to resolve mass forced displacement at its root cause, to explore the course that it takes, and how it might be prevented. The collection comprises original research by leading legal scholars and jurists focusing on the three central themes of serious international crimes, human rights, and forced migration. The work also includes a Foreword from Sir Howard Morrison, QC, former President of the Appeals Division of the International Criminal Court.

The book will be a valuable resource for students, academics, researchers, and policymakers working in the areas of international law, migration, human rights, and international criminal law.

Part 1 Examining the fundamental interrelationships with serious international crimes, human rights and forced migration

2 International crimes, international outlaws and the interface between ICL and IRL

Elies van Sliedregt

DOI: 10.4324/9781003094388-4

This chapter will focus on serious international crimes, refugee exclusion and the interplay between international criminal law (ICL) and international refugee law (IRL). The chapter is divided into three parts. I will start by talking about the area of law where ICL and IRL are linked most directly: refugee exclusion. In the second part I will talk about the specific situation of those acquitted and sentenced by international courts. Examining the post-trial phase reveals the incomplete nature of ICL. International criminal justice is a one-sided exercise; it is premised on prosecution and adjudication, not on post-trial justice. The third part will discuss the future of ICL, where I think it is going and what the impact could be on IRL.

This chapter is intended to set the scene for debates that are covered in the subsequent chapters that follow in this edited collection. The aim is to prepare the ground for some of the debates on the resettlement of those who are held in detention, the fate of national foreign fighters who return home or seek refuge elsewhere and a pan-European policy on refugee exclusion. Refugee exclusion is a good place to start.

Interplay between ICJ and IRL: refugee exclusion

Currently – as far as I know – 11 former accused of the International Criminal Tribunal for Rwanda (ICTR) remain in a safe house in Arusha, Tanzania, 9 have been acquitted and 2 have completed their sentences (Ntagurera since 2004). They cannot leave Arusha and join their families, most of whom live in Western Europe and Canada. These States refuse to grant them asylum. States can lawfully do so on the basis of Article 1F(a) of the Refugee Convention, which stipulates that persons seeking refuge can be excluded from protection when there are “serious reasons for considering” they committed war crimes, crimes against humanity or crimes against peace.

The “serious reason for considering” threshold falls short of the criminal law standard of “beyond reasonable doubt”. This means that even when acquitted, a person remains undeserving for protection under the Refugee Convention. Sending the acquitted and sentenced persons back to Rwanda is not an option since they will face prosecution for related charges and not necessarily receive a fair trial. Former ICTR President Judge Khan has deplored this problem of resettlement. It is a fundamental expression of the rule of law, he states, to guarantee acquitted and sentenced persons the right to live, including full enjoyment of education, employment and family.

The majority of exclusion orders, however, are issued against those who have never been indicted and probably never will be. For instance, in the Netherlands, hundreds of asylum claimants, mainly from Afghanistan and Iraq, have been excluded on the basis of Article 1(F)(a). They seek refuge mainly in Europe, having fled their home country after the regime they were implicated in was ousted; a regime that was engaged in human rights abuses. These people often remain unprosecuted because Dutch courts lack jurisdiction or because prosecutors refrain from prosecution for policy reasons (lack of resources, lack of reliable witnesses, etc.). A considerable number of them cannot be sent back to their country of origin. Human rights obligations of the State of refuge, the Netherlands in this particular case, pose an obstacle to sending these people back to their country of origin where they will face ill-treatment. These people remain in a ‘legal limbo’ often against their will.

Now, exclusion concerns only a small share of cases concerning refugee status. Joseph Rikhof, who published a comparative study on refugee exclusion, estimates that it is less than half of one per cent in the countries he studied, amongst which the Netherlands and Canada are included. Still, exclusion is a very important aspect of IRL. It means denying the benefits of the Refugee Convention to persons who seek refuge elsewhere; the very right the Convention aims to protect.

Refugee exclusion and the link to criminal law

The rationale of refugee exclusion is twofold: (i) to protect refugee status from abuse by not granting protection to those who are undeserving of such protection and (ii) to ensure that those who have committed grave crimes do not escape prosecution. The latter ties refugee exclusion closely to criminal justice.

In its preamble, the International Criminal Court (ICC) affirms that “[t]he most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. Moreover, in 2006, the United Nations Security Council emphasized that it is “the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes, genocide, crimes against humanity and serious violations of international humanitarian law”. To ‘operationalize’ the obligation to prosecute international crimes, States have adopted legislation to enable such prosecutions and adjudications. Since the establishment of the ICC in 2002, the paradigm in ICL has shifted from international prosecutions to national prosecutions.

The reliance on Article 1(F) of the Refugee Convention is a relative recent practice. For a long time, the provision was a dead letter. It is since the 1990s, with the emergence of a system of international criminal justice and its implementation at the national level, that refugee exclusion has been resorted to exclude persons from protection. The renewed awareness and resolve to put an end to impunity by prosecuting international crimes have led to an increase in the use of the exclusion clause in Article 1(F)(a). It generates a growing group of ‘international outlaws’.

Expansive practices of refugee exclusion

Not much is needed to conclude that there are “serious reasons for considering” that someone has committed a crime. Sometimes, a person’s (senior) position in a government organ may be sufficient for exclusion. This has to do with the import of broad concepts of liability from ICL into refugee law. Refugee adjudicators interpret “committing” with reference to “international instruments” in subparagraph 1(F)(a). Decision makers have relied on sui generis concepts of criminal participation loosely modelled on ICL. A controversial concept is the ‘personal and knowing participation-test’, premised on the notion of membership in an organization with a brutal purpose. The latter concept was developed by prosecutors in Nuremberg but never applied. It was controversial because it created a presumption of complicity. Defendants would have to prove that they had not joined the organization voluntarily and that they had no knowledge of the criminal purpose of the organization. On the basis of the ‘personal and knowing participation-test’, membership in an Afghan security organization or in the Iraqi Baath party is sufficient to exclude a claimant from refugee protection. This results in excluding individuals who only had a very remote connection to the commission of crimes and who acted under some form of coercion.

Jennifer, a Canadian refugee law expert, has argued that refugee exclusion has been broadened to such a degree that protection is routinely denied to individuals whose admission as refugees would bring the asylum system into disrepute. This represents, in her view, a significant deviation from the core commitments contained in the Refugee Convention and, given the persecution that some individuals will face in the absence of protection, is cause for grave concern. She proposes another approach to refugee exclusion. Decision-makers should be critical in taking ICL as the prism through which to determine eligibility for refugee status. Criminal law and refugee law differ fundamentally, she argues. The binary system of decision-making in refugee law – you are either granted access or not – does not match with the more nuanced outcomes of a criminal law processes, where lenient sentences can be imposed because of a minor role and an accused person can rely on a defence. Only when adjudicators take full account of criminal law – also looking at the averting side of crime responsibility (ergo defences) not just the attribution side – can it be a reference point for refugee decision-making.

In the last few years, there has been a move away from applying broad concepts of liability. The Supreme Courts of the UK, New Zealand and Canada held that the ‘personal and knowing participation’ concept is too broad and that exclusion requires the stricter test of a “voluntary, knowing and significant contribution” to a crime.¹ The Canadian Supreme Court in the case of Ezokola found that 20 years of Canadian jurisprudence on exclusion had been overly expansive. This case concerned an official from the Democratic Republic of Congo (DRC) whose (alleged) personal and knowing participation had made him complicit in the crimes of the government of President Kabila by remaining in the position without protest and continuing to defend the interests of the government while aware of the crimes committed by the government. Overturning the Federal Court of Appeal’s decision, the Supreme Court held that, “[i]t is… necessary to rearticulate the Canadian approach to bring it in line with the purpose of the Refugee Convention and art. 1F(a)…”. This is a step in the right direction; I welcome this. Yet as I understand, the ‘personal and knowing test’ is still applied with regard to other exclusion clauses.

1 R (on the application of JS) (Sri Lanka) (Respondent) v Secretary of State for the Home Department (appellant), [2010] UKSC 15; The Attorney-General (Minister of Immigration) v Tamil X and the RSAA, [2010] NZSC 107; Ezokola v Canada (Minister of Citizenship and Immigration) [2013] SCC 40.

Mismatch of thresholds

There is yet another reason that explains the expansive exclusion practice: the mismatch between criminal law and refugee law when it comes to triggering exclusion. In other words, the “serious reasons for considering” (that the claimant committed a crime) versus the test required for a conviction: beyond reasonable doubt.

At a United Nations High Commissioner for Refugees (UNHCR) roundtable it was concluded that the serious reasons test corresponds to the lower standard of proof that is required for indicting a defendant (that there is a prima facie case). More recently, it was suggested that decision-makers apply it in line with the “reasonable grounds test” used by the ICC, a threshold that triggers the issuance of an arrest warrant (Article 58(1) of the ICC Statute). This effectively means that the mere fact that a person has...