Exclusion Clause

Introduction

In recent years, there has been renewed emphasis on the exclusion clauses of the Refugee Convention and the OAU Convention, in the context of wars of aggression, civil wars, ethnic conflicts and terrorism in many parts of the globe, and increasing reluctance on the part of asylum states to play host to those perceived as criminal or otherwise undesirable. It is often difficult to ascertain whether a member of an armed group, or a supporter or sympathiser who has given some form of support to such a group, should be excluded from refugee status. There has been much litigation on the meaning of some of the phrases used in Article 1F of the Refugee Convention.

Article 1F reads:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

a. He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

b. He has committed a serious non-political crime outside the country of refuge prior to his  admission to that country as a refugee;

c. He has been guilty of acts contrary to the purposes and principles of the United Nations.

Similar provisions are contained in Article I(5) of the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (the OAU Convention). In addition, UNHCR’s mandate is limited by paragraph 7(d) of its Statute, which provides that the competence of the High

Commissioner shall not extend to a person

In respect of whom there are serious reasons for considering that he [or she] has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the 1945 London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the 1948 Universal Declaration of Human Rights [which denies the right to seek and enjoy asylum in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations].

References to Article 1F therefore include references to Article I(5) of the OAU Convention and to para 7(d) of the UNHCR Statute.

The purposes of Article 1F of the Convention are to deny protection to those who might otherwise qualify for refugee status but whose actions render them unworthy of it (eg because they contribute to the creation of refugees), and to prevent refugee status from being used as a shield against lawful prosecution in the home state (see UNHCR Background Note on the Application of the Exclusion Clause, para3). James Hathaway, in The Law of Refugee Status, says that the exclusion clause is ‘rooted in both a commitment to the promotion of an international morality and a pragmatic recognition that states are unlikely to agree to be bound by a regime which requires them to protect undesirable refugees’. (p214)

Relationship with Articles 32 and 33(2)

As UNHCR points out in Guidelines on International Protection: Application of the Exclusion Clauses (2003), the exclusion clauses are not to be confused with Article 32 of the Convention, which deals with the expulsion of recognised refugees who pose a danger to the host State, and Article 33(2), which withdraws protection from refoulement from such people, either because of serious criminal conduct after the grant of status, or because of risks to national security from the refugee’s continued presence in the asylum state.

Exclusion mandatory

If someone falls within the exclusion clauses of Article 1F, exclusion from refugee status is mandatory. States have no discretion to grant refugee status to those whose actions place them outside its protection (although such persons may be eligible for other forms of protection – for example, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment absolutely prohibits removal to a country where returnees run a real risk of being tortured, and in European states signatory to the European Convention on Human Rights, they cannot be returned to a state where there is a real risk of torture, inhuman or degrading treatment or subjection to the death penalty, however heinous their crimes: see Chahal v United Kingdom (1996) 23 EHRR 413).  

‘Serious reasons for considering’

Because of the severity of the consequences of exclusion from refugee status, UNHCR has pointed out that the exclusion clauses must be interpreted restrictively and applied with great caution (see UNHCR Handbook on Procedures and Criteria for determining Refugee Status, para 149; UNHCR Background Note para 4). But as the wording of Article 1F makes clear, the conduct founding exclusion need not be the subject of a criminal conviction, or proved beyond reasonable doubt or even on balance of probabilities: exclusion must follow if ‘there are serious reasons for considering’ that the refugee claimant is guilty of such conduct. This means more than mere suspicion of guilt, however; as the Supreme Court of Canada held in the Mugesera case, paras. 114-17, there has to be an objective basis for the belief that is based on compelling and credible information. The UK Supreme Court held in Al Sirri and another v Secretary of State for the Home Department [2012] UKSC 54 that:

1. ‘Serious reasons’ is stronger than ‘reasonable grounds’;
2. The evidence from which those reasons are derived must be “clear and credible” or “strong”;
3. “Considering” is stronger than “suspecting”. In our view it is also stronger than “believing”. It requires the considered judgment of the decision-maker.
4. The decision-maker need not be satisfied beyond reasonable doubt or to the standard required by the criminal law.
5. It is unnecessary to import our domestic standards of proof into the equation. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention … in the particular case.’

It is not sufficient that the act in question could be one falling within the exclusion clauses; it must be established that it would be: Moreno v Canada (Minister of Employment and Immigration) (1994) 1 FC 298.

Competence

It is for the asylum state to determine whether the refugee claimant falls within one of the exclusion clauses. States are expected to pay due regard to the advice of UNHCR in the light of its supervisory mandate.

The disqualifying conduct is defined as crimes against peace, war crimes or crimes against humanity, as defined in relevant international instruments (1F(a)); serious non-political crime committed outside the country of refuge prior to admission as a refugee (1F(b)); and acts contrary to the purposes and principles of the United Nations (1F(c)).

Temporal and territorial limitations

The territorial and temporal limitations do not apply to Articles 1F(a) and (c), so that conduct contrary to these clauses will disqualify wherever and whenever the disqualifying conduct takes place, and can apply to those who already have refugee status, which would have to be cancelled or revoked on establishment of the relevant ground. UNHCR’s Background Note indicates (paras 11-17) that cancellation would be appropriate where the facts giving rise to exclusion occurred prior to the grant of status but were only discovered afterwards, while revocation would be the appropriate course if the conduct founding exclusion occurred after the grant of status. (In the African context, this is by way of cessation; Article I(4)(g) of the OAU Convention provides that the Convention will cease to apply to refugees infringing its purposes and objectives.)

Crimes against peace, war crimes, crimes against humanity

Article 1F(a)

At the time of the drafting of the Convention, the main international instrument which defined crimes against peace, war crimes and crimes against humanity was the 1945 London Charter of the International Military Tribunal. However, Article 1F(a), in common with the other Articles of the Refugee Convention, has a dynamic meaning not limited to matters which were considered crimes against peace, war crimes or crimes against humanity in 1951. The UNHCR Handbook lists in Annex VI other international instruments seen as relevant to determining the scope of Article 1F(a) of the 1951 Convention, and further international instruments which post-date the UNHCR Handbook are also relevant to the definition as applied today.

Relevant international instruments therefore include (in addition to the 1945 London Charter) the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1949 Geneva Conventions for the protection of victims of war (Convention for the protection of the wounded and sick, Article 50; Convention for the protection of wounded, sick and shipwrecked, Article 51; Convention relative to the treatment of prisoners of war, Article 130; Convention relative to the protection of civilian persons, Article 147); the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid; the two 1977 Additional Protocols to the Geneva Conventions Relating to the Protection of Victims of International and non-International Armed Conflicts, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the 1998 Rome Statute of the International Criminal Court, which entered into force on 1 July 2002. The provisions of the Rome Statute Articles 6, 7 and 8 (genocide, crimes against humanity and war crimes) are supplemented by the document ‘Elements of Crimes’ which set out all the contextual elements for each crime, as an aid to the ICC. Finally, the draft Code of Offences against the Peace and Security of Mankind, in process by the International Law Commission since 1947, provides a framework for defining these crimes in the refugee exclusion context.

Crimes against peace

James Hathaway’s succinct definition of crimes against peace is ‘planning of or participation in an unlawful war’ (The law of refugee status, 2nd ed, p217).Article 6 of the London Charter (set out as Annex V to the UNHCR Handbook) sets out the only definition of ‘crimes against peace’, as follows:

a. Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

The Rome Statute of the ICC lists a ‘crime of aggression’ in its Article 5, although it has not yet been defined. The crime of aggression has been defined by the UN General Assembly (in UNGA res 3312 (XXIX), 1974) as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations’.

UNHCR makes the point in its Guidelines on International Protection: Application of the Exclusion Clauses that ‘Given the nature of [a crime against peace], it can only be committed by those in a high position of authority representing a State or a State-like entity. In practice, this provision has rarely been invoked.’

War crimes

Unlike crimes against peace, war crimes may be committed by civilians, and may be committed in a non-international armed conflict, although not in situations which are merely ‘internal disturbances and tensions’. In the case of Tadic, the International Criminal Tribunal for the former Yugoslavia (ICTY) held that a non-international armed conflict (in the context of common Article 3 of the Geneva Conventions) exists where there is ‘protracted armed violence between governmental armed authorities and organised armed groups or between such groups’, and this definition is incorporated into Article 8(2)(f) of the Rome Statute. The most recent definition in the international instruments, Article 8(2) of the Rome Statute defines ‘war crimes’ exhaustively, with different elements depending on whether the context is an international or a non-international armed conflict. The ICC definition, which is supplemented by ICC’s ‘Elements of Crimes’, is likely to become the most used definition for the purposes of Article 1F(a) of the Refugee Convention. Article 8(2) reads as follows:

2. For the purpose of this Statute, “war crimes” means:

a. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

a.i. Wilful killing;

a.ii. Torture or inhuman treatment, including biological experiments;

a.iii. Wilfully causing great suffering, or serious injury to body or health;

a.iv. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

a.v. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

a.vi. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

a.vii. Unlawful deportation or transfer or unlawful confinement;

a.viii. Taking of hostages.

b. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

b.i. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

b.ii. Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

b.ii.iii. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

b.ii.iv. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

b.ii.v. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

b.ii.vi. Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

b.ii.vii. Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

b.ii.viii. The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

ii. ix. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

b.ii.x. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

b.ii.xi. Killing or wounding treacherously individuals belonging to the hostile nation or army;

b.ii.xii. Declaring that no quarter will be given;

b.ii.xiii. Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

b.ii.xiv. Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

b.ii.xv. Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

b.ii.xvi. Pillaging a town or place, even when taken by assault;

b.ii.xvii. Employing poison or poisoned weapons;

b.ii.xviii. Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

b.ii.xix. Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

b.ii.xx. Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

ii. xxi. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

ii. xxii. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilisation, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

ii. xxiii. Utilising the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

ii. xxiv. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

ii. xxv. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

ii. xxvi. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

c. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:         

i. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

ii. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

ii. iii. Taking of hostages;

ii. iv. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable.

d. Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

e. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

i. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

i. ii. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

i. iii. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

i. iv. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

i. v. Pillaging a town or place, even when taken by assault;

i. vi. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilisation, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

i. vii. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

i. viii. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

i. ix. Killing or wounding treacherously a combatant adversary;

i. x. Declaring that no quarter will be given;

i. xi.  Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

i. xii. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

f. Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups.

Crimes against humanity

Again, it is the Rome Statute which provides the fullest definition of ‘crimes against humanity’, which, unlike the other Article 1F(a) crimes, need not be committed in the context of armed conflict. Clearly, civilians as well as military personnel may be guilty of the acts set out here. Article 7 of the Rome Statute reads as follows:

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

a. Murder;

b. Extermination;

c. Enslavement;

d. Deportation or forcible transfer of population;

e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

f. Torture;

g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;

h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

i. Enforced disappearance of persons;

j. The crime of apartheid;

k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The definition is followed in Article 7(2) by further detailed definitions of all the terms used. Isolated attacks or offences would not generally fall within Article 1F(a), but an inhumane act committed against an individual may constitute a crime against humanity if it is part of a coherent system or a series of systematic and repeated acts against a civilian population (further defined in Article 7(2) as ‘a course of conduct involving the multiple commission of [such] acts against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack’). UNHCR’s Background Note adds that ‘Crimes against humanity may be identified from the nature of the acts in question, the extent of their effects, the knowledge of the perpetrator(s), and the context in which such acts take place.’

In SK (Zimbabwe) [2012] EWCA Civ 807, the English Court of Appeal upheld a decision that a former member of the ZANU PF youth militia who had beaten farm workers in mass farm invasions had committed ‘other inhumane acts’ (Article 7(1)(k) of the Rome Statute), and these crimes against humanity excluded her from refugee protection.

Genocide would clearly be a crime against humanity, and Article 6 of the Rome Statute follows the definition found in the 1948 Genocide Convention:

… any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a. killing members of the group;

b. causing serious bodily or mental harm to members of the group;

c. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d. imposing measures intended to prevent births within the group;

e. forcibly transferring children of the group to another group.

Liability for crimes under Article 1F(a)

Not only those who actually carry out the acts set out in the international instruments are liable for exclusion under Article 1F(a). Article 6 of the 1945 London Charter provides for responsibility of: ‘Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes’  who are responsible for ‘all acts performed by any persons in execution of such plan’.

The UNHCR Guidelines state at paragraph 18

‘In general individual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. The individual need not physically have committed the criminal act in question. Instigating, aiding and abetting and participating in a joint criminal enterprise can suffice.’

Article 25 of the Rome Statute sets out the varieties of individual liability to include ordering, soliciting, inducing, aiding, abetting or in any other way knowingly contributing to the commission or attempted commission of the crime by a group of persons acting with a common purpose.

Incitement

In Mugesera v Canada the appellant had in November 1992, prior to his admission to Canada, been an active member of a hard‑line Hutu political party who had spoken to about 1,000 people at a meeting of the party in Rwanda to oppose the negotiation process then under way to end the war in Rwanda. He conveyed to his listeners, in extremely violent language, the message that they faced a choice of either exterminating the Tutsi or being exterminated by them. The Immigration and Refugee Board held that by delivering the speech in the context of the ethnic massacres taking place at that time, the appellant had incited to murder, genocide and hatred, and had committed a crime against humanity, and excluded him from refugee status. The Supreme Court upheld the IRB’s decision.  

Military commanders

Article 28 of the Rome Statute gives military commanders and superiors responsibility for actions of their forces or subordinates, not only where these actions result from the commander’s orders but also as a result of their failure to exercise proper control over such forces or subordinates, where they knew or should have known that such crimes were being or were about to be committed and where they failed either to take all necessary and reasonable measures to prevent them or subsequently to submit them to the competent authorities for investigation and prosecution.

In Sivakumar v Canada the appellant, a leader of the Liberation Tigers of Tamil Eelam (LTTE), was held responsible for crimes against humanity committed by the LTTE although he had not personally participated in them, because of his leadership position within that organisation and his continuing participation in it.

Soldiers and members of armed organisations

Goodwin-Gill points out in The Refugee in International Law (p101) that while superiors may be responsible for the actions of a subordinate, the subordinate will not be relieved of responsibility. Soldiers who are ordered to carry out war crimes or crimes against humanity are guilty, since ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’ (Judgment of the International Military Tribunal, 41 AJIL 172 (1947), cited in Goodwin-Gill p100).  

In Ramirez v Minister of Employment and Immigration [1992] 2 FC 306, the Federal Court of Canada held that ‘mere membership in an organisation which from time to time commits international offences is not normally sufficient for exclusion from refugee status. It seems apparent, however, that where an organisation is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts. Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation though, again, presence coupled with additional facts may well lead to a conclusion of such involvement. At bottom, complicity rests in such cases… on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it’. Exclusion will thus depend on the nature of the organisation (whether brutality is a sine qua non of the organisation or merely incidental), and the status, role and extent of knowledge of atrocities of the refugee claimant.

The ICTY discussed individual responsibility in 2005 in the case of Kvocka et al under four headings – instigation, commission, aiding and abetting, and participation in a joint criminal enterprise. It held that presence at the scene of a crime, while not in itself conclusive of aiding or abetting, could give rise to liability if presence had a significant legitimising or encouraging effect on the principal actor(s). A joint criminal enterprise exists wherever there is a plurality of persons, a common plan and participation of the individual in the execution of the common plan. Where the person concerned has ‘carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that his [or her] acts or omissions facilitated the crimes committed through the enterprise’, exclusion can follow on the basis of joint enterprise (Kvocka para 312).

In R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15, the Supreme Court considered the case of a claimant recruited to the LTTE at the age of ten, who had continued in combat and intelligence roles until he was 24. His claim had been rejected on the ground that his ‘own evidence shows voluntary membership and command responsibility within an organisation that has been responsible for widespread and systemic war crimes and crimes against humanity’. The Court of Appeal reversed this decision, holding that the decision-maker acted on a wrongful presumption that the claimant, as a member of the LTTE, was therefore guilty of personal and knowing participation in such crimes, instead of considering whether there was evidence affording serious reason for considering that he was party to that design, that he had participated in a way that made a significant contribution to the commission of such crimes and that he had done so with the intention of furthering the perpetration of such crimes. The Supreme Court held that this was too narrow a formulation, holding that a person would be disqualified under Article 1F(a) if there were serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance would in fact further that purpose. As to mens rea, if a person was aware that in the ordinary course of events a particular consequence would follow from his actions, he would be taken to have acted with both knowledge and intent.

The recent Canadian Supreme Court case of Ezokola, involving a senior official of the Democratic Republic of Congo, posits a tighter test for exclusion under Article 1F(a). The Immigration and Refugee Board had excluded the appellant from refugee status, and the Federal Court had held that a senior official could ‘demonstrate personal and knowing participation and be complicit in the crimes of the government by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of [its] crimes’. The Supreme Court rejected the idea that ‘mere associations or passive acquiescence’ could found complicity and so lead to exclusion.

Defences

In The law of refugee status, pp218ff, Hathaway described defences of self-defence, coercion, state of necessity or force majeure which have availed certain refugee claimants, where the courts recognised their absence of intent, where they performed the act in question only to avoid ‘grave and imminent peril’. But he questions the failure of the Immigration Appeal Board in the case of Chilean torturer Felix Nunez Veloso to consider whether the defence of duress should avail someone responsible for a number of deaths, given that the human suffering caused by the claimant outweighed that which he would face even by execution.

Article 1F(b): Serious non-political crimes

Serious

Not every criminal act by a person seeking asylum prior to admission to the country justifies exclusion from refugee status. First of all, the crime must have a certain weight. Here international rather than local standards are relevant; the gravity of the crime should be judged against international standards, not simply by its characterisation in the host State or country of origin (see UNHCR Guidelines para 14; UNHCR Background note para 38). The Background note states:

‘Examples of ‘serious’ crimes include murder, rape, arson and armed robbery. Certain other offences could also be deemed serious if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct and other similar factors.’

In AH (Algeria) [2012] EWCA Civ395, the appellant had been convicted in his absence of a bombing in Algeria and sentenced to death, and in France he was convicted of membership of an association formed with a view to the preparation of acts of terrorism, and sentenced to two years’ imprisonment. His asylum claim in the UK was refused under Article 1F(b) for serious non-political crime. The Court of Appeal, overturning the refusal, held that the assistance which could be derived from a conviction in a decision to exclude depended on the nature of the offence and the findings of the convicting court as to the offender’s true role and personal involvement. The facts found by the French court were too sparse to enable the tribunal to determine the appellant’s role in the group and there was no evidence of instigation encouragement or inducement. The court added that signatory states were not free to adopt their own definitions of what constituted serious crime under Article 1F(b).

Non-political

Then, the crime must be non-political. According to para 15 of the UNHCR Guidelines, a serious crime should be considered non-political when it is committed predominantly for other motives (such as personal reasons or gain). Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. Thus, particularly cruel actions, or acts of terrorism against civilians, may be classified as serious non-political crimes, even if committed with an allegedly political objective. In the UK House of Lords (Supreme Court) case of T v Immigration Officer [1996] AC 742, the refugee claimant was an Algerian who had been involved in plans to bomb a civilian airport, as part of the struggle against the military regime there. The Court held that although a crime is political for the purposes of Article 1F(b) if it is committed for a political purpose (eg, to overthrow a regime or to induce a change in government policy), there must be a sufficiently close and direct link between the crime and the alleged purpose, and such link is destroyed if it was likely to involve indiscriminate killing or injury to members of the public.

By applying the concept of proportionality, the international jurisprudence has defined as ‘non-political’ many offences involving not just terrorism but also public order offences, notwithstanding their political motivation and intention. In the US Supreme Court case of Aguirre-Aguirre v. Immigration and Naturalization Service (INS), 119 S.Ct. 1439 (1999), involving a Guatemalan asylum seeker who had burned buses, assaulted passengers and damaged property during protests against the government, the Court upheld the Board of Immigration Appeals’ decision that the political aspects of the offence were outweighed by the criminal aspects.

But designation of an offence such as a terrorist offence as ‘non-political’ in an extradition treaty is not determinative of its character, and the political element of a crime must be considered on a case by case basis (see UNHCR Background Note para 42).

A refugee claimant cannot benefit by the designation of a crime as ‘political’ if the aims breached fundamental human rights. This would apply to crimes designed, for example, to impose a dictatorship or a racially or religiously discriminatory regime.

As noted above, the exclusion clause is the only one to have a temporal and territorial limitation, in that it applies only in respect of crimes committed outside the asylum country before admission as a refugee. Crimes committed after admission of a refugee or in the asylum country can, if particularly serious, found withdrawal of protection from refoulementunder Article 33(2) (subject to an assessment of the refugee as a danger to the community of the asylum country) but refugee status is not revoked or cancelled.

Acts contrary to the purposes and principles of the United Nations

According to Article 1 of the United Nations Charter, the purposes of the United Nations are:

• to maintain international peace and security;
• to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples;
• to achieve international co-operation in solving socio-economic and cultural problems, and in promoting respect for human rights for all without distinction as to race, sex, language, or religion; and
• to serve as a centre for harmonising the actions of nations in the attainment of these common ends.

The principles of the United Nations, set out in Article 2 of the Charter, are:

• sovereign equality of all Members;
• good faith fulfilment of obligations assumed under the Charter;
• peaceful settlement of disputes;
• refraining from the threat or use of force against the territorial integrity or political independence of another

 State; and

• assistance in promoting the work of the United Nations.

UNHCR’s Background note points out (paras 46-47) that the Article 1F(c) exception is vaguely worded and not clarified by the travaux preparatoires of the Convention, and as such is open to abuse by governments seeking to exclude refugees illegitimately. It makes the point that given the breadth of subjects covered by multilateral UN treaties,

‘Equating any action contrary to such instruments as falling within Article 1F(c) would … be inconsistent with the object and purpose of this provision. Rather, it appears that Article 1F(c) only applies to acts that offend the principles and purposes of the United Nations in a fundamental manner.’

UNHCR’s position (para 163 of the Handbook, para 48 of the Background Note) is that the exception should apply only to those in positions of power in states or state-like entities. However, the European Court of Justice in the 2010 case of B and D ruled that non-state actors could in principle be excluded under Article 1F(c).

In practice, Article 1F(c) has been applied most frequently to acts of terrorism, particularly since UN Security Council Resolutions on terrorism such as UNSC 1624/2005, which stated that acts of international terrorism are ‘a threat to international peace and security and are contrary to the purposes and principles of the United Nations’. The UK Supreme Court in Yasser Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54 had to decide whether all acts defined as terrorism by UK domestic law could found exclusion under Article 1F(c), or only those with an international dimension. The Court adopted the formulation in para 17 of UNHCR’s Guidellines, that:

‘Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community’s co-existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category.’

In Pushpanathan v Canada [1998] 1 SCR 982, the Canadian Supreme Court held that someone engaged in drug trafficking could not be excluded under this head.

Individual responsibility

The principles of responsibility underlying exclusion under Article 1F(c) are the same as those under Article 1F(a) (above). In KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292, the English Court of Appeal held that a foot soldier in an organisation such as the Liberation Tigers of Tamil Eelam, who had not participated in acts of terrorism and, in particular, had not participated in the murder or attempted murder of civilians, was not guilty of acts contrary to the purposes and principles of the United Nations and hence was not excluded from the Convention under Art 1F(c).

Resources

UNHCR, Guidelines on International protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05

UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003 

Rome Statute of the International Criminal Court

Cases

Aguirre-Aguirre v. Immigration and Naturalization Service (INS), 119 S.Ct. 1439 (1999)

AH (Algeria) [2012] EWCA Civ395

Yasser Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54

Bundesrepublik Deutschland v B and D (joined cases C-57/09, C-101/09)[2010]

Ezokola v Canada (Citizenship and Immigration) [2013] SCC 40

R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15

KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292,

Prosecutor v. Miroslav Kvocka et al. (Trial Judgement), IT-98-30/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 November 2001

Mugesera v Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40

Pushpanathan v. Canada (Minister of Citizenship and Immigration), Supreme Court of Canada, [1998] 1 SCR 982

Ramirez v Minister of Employment and Immigration [1992] 2 FC 306

Sivakumar v Canada (Minister of Employment and Immigration)  [1994] 1 C.F. 433, Canada: Federal Court

SK (Zimbabwe) [2012] EWCA Civ 807

T v Secretary of State for the Home Department [1996] UKHL 8

Prosecutor v Tadic, IT-94-I-T, Trial Chamber judgment of 7 May 1997
Felix Nunez Veloso, IAB Decision 79-1017, cited in Hathaway p218.

Books and articles

Ahlborn, Christiane, “The normative erosion of international refugee protection through UN Security Council practice”, Leiden Journal of International Law (L.J.I.L.) 2011, 24(4), 1009-1027 (available on Westlaw)

Gilbert, Geoff, “Current issues in the application of the exclusion clauses”, in E. Feller, V. Turk and F. Nicholson (eds), Refugee Protection in International Law, Cambridge (2003), pp. 429-432, at: http://www.unhcr.org/refworld/docid/470a33bc0.html

Goodwin-Gill, Guy, The refugee in international law (2nd edition, 1996), Oxford, Clarendon

Hathaway, James, The law of refugee status (1991) Butterworths

Middleton, Joe, “The exclusion net”, New Law Journal (N.L.J.) 2009, 159 (7371), 780.

Singer, Sarah, “Exclusion from refugee status and terrorist related offences: the case of AH (Algeria), Journal of Immigration, Asylum and Nationality Law (J.I.A.N.L.) 2012, 26(4), 337-348

Van Wijk, Joris, “When international criminal justice collides with principles of international protection: assessing the consequences of ICC witnesses seeking asylum, defendants being acquitted, and convicted being released”, L.J.I.L. 2013, 26(1), 173-191 (available on Westlaw)

Fall 2013 issue of Michigan Journal of International Law,vol. 35, no. 1 (Fall 2013). It includes a special feature on the “Michigan Guidelines on the Exclusion of International Criminals.”