Exclusion

Both the 1951 Convention and the 1969 OAU Convention specify instances in which those seeking international protection must be denied of refugee status. Although the 1984 Cartagena Declaration does not have a specific exclusion clause, it sets the OAU Convention as precedent to the extent that it is regionally appropriate (in Latin America). This implies that the exclusion clause might also apply to refugees under the Cartagena Declaration. Note that your country’s national laws and policies may have their own additional exclusion clauses.

The rationale of the exclusion clause is (1) to protect host communities from serious criminals, (2) to protect the humanitarian/civilian character of asylum and the integrity of the asylum regime, and (3) to prevent impunity by ensuring serious criminals cannot flee from justice proceedings in their countries of origin. This section examines Article 1F of the 1951 Refugee Convention, and Article 1(5) of the OAU Convention. The sub-section of this page introduces Article 1D of the 1951 Refugee Convention, an exclusion clause unrelated to criminality.

Article 1F of the 1951 Convention

Article 1F of the 1951 Convention sets out the grounds for exclusion from the 1951 Convention refugee definition:

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.

Exclusion clauses are increasingly invoked by governments unwilling to receive refugees. However, these provisions should be interpreted restrictively, and be applied with caution in the most extreme circumstances. This is particularly so in the case of Article 1F(c), given it contains imprecise language, and should be read in conjunction with Article 1 of the United Nations Charter. Article 1F(c) is almost never invoked. Thresholds for the crimes contemplated should be high, with implications for international peace and security.

The standard of proof for the 1951 Convention’s exclusion clauses is “serious reasons to believe”. This is generally regarded as below the criminal standard of proof (beyond reasonable doubt), and does not require absolute certainty. There may be jurisprudence in your country on this phrase’s precise interpretation: the exact standard needed varies from country to country. In all countries, however, the standard of proof is fairly high. This is to safeguard against the potentially serious consequences of exclusion from refugee status for an applicant. Note that where an exclusion clause applies, the exclusion of an applicant is not discretionary: the applicant must not receive refugee protection, no matter the seriousness of his security risks in his country of origin.

Evolving bodies of international law, such as international criminal law, can help interpret the parameters of Article 1F. Judging whether someone has committed crimes against peace, war crimes, or crimes against humanity, is in its relative infancy as a body of international law. However, precedent from the International Tribunals of Rwanda and Yugoslavia, as well as from the International Criminal Court, should be used to assess the applicability of these definitions.

Further debates in the application of the exclusion clause include whether child soldiers or others coerced into committing such crimes should have diminished responsibility. In addition, states increasingly consider terrorism to fit within the crimes outlined in the exclusion clause. However, because there is no uniform international definition of terrorism, it has been difficult to develop consensus on how to categorize terrorist acts under Article 1F. Since 1994, ‘terrorism’ (by whatever definition) has been explicitly announced to be contrary to the purposes and principles of the UN. It is not yet clear whether terrorism can qualify as a (serious) non-political crime, or one of the 1F(a) crimes.

Article 1(5) of the OAU Convention

Article 1(5) of the OAU Convention states:

The provisions of this Convention shall not apply to any person with respect to whom the country of asylum has 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 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 Organization of African Unity;
(d) he has been guilty of acts contrary to the purposes and principles of the United Nations.

This merely adds the additional ground of exclusion that the applicant must not have been found guilty of acts contrary to the purposes and principles of the OAU.

Issues in practice

    • The application of the exclusion clause should be unwarranted (does not apply) if the individual has already served their sentence for the crime in question. In addition, exclusion by association is impermissible. If a family head is excluded from refugee status, dependents should undergo RSD in their own right.
    • There can be instances where an individual is suspected to fall under the exclusion clause in prima facie (group RSD) settings. In these circumstances, the individual may undergo individualized RSD immediately even in prima facie circumstances. In addition, the status of persons granted asylum on prima facie basis may be cancelled if reliable, verified information becomes available after recognition, revealing that refugee status should never have been granted to the individual to begin with.
    • Conducting exclusion assessments in mass influx situations is almost impossible, yet such influxes may present better cover for criminal elements to mingle among refugee flows and escape detection. In situations of mass influx, individualized RSD should be advocated for as soon as practically feasible to exclude any ineligible members of the group.
    • A crime may be serious enough to warrant exclusion, but the perpetrator may not be considered so dangerous to the community as to trigger the lifting of the prohibition on refoulement, as per Article 33 of the 1951 Convention. Human rights instruments offer greater certainty of non-refoulement, protecting even serious international criminals from return to potential torture. This creates the possibility of applicants being excluded from refugee status but are protected from refoulement. In this case, an alternative migration status must be found to avoid unlawful deportation and/or unjustifiable prolonged detention. Or, in a country with strong universal jurisdiction or implementing legislation of the Rome Statute, the country could choose to prosecute the person, if it is a 1F(a) exclusion.

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