Alternatives to Refoulement

AuthorJoseph Rikhof
 
Alternatives to Refoulement
When a person cannot be removed because of the risk of torture or
cruel, inhuman, or degrading treatment or punishment, but they do not
fulf‌ill the requirement to obtain the status of refugee under the Refugee
Convention, they are given subsidiary protection status. Since there is
an expectation that removal can occur when the human rights situation
in the country of removal improves, the benef‌its of this subsidiary pro-
tection status are not the same as with refugee status. Like refugees, they
are allowed to stay in the country of refuge, but the rights associated
with subsidiary status tend to be fewer, in the sense that while substan-
tive rights, such as the right to education, medical care, and employment,
are generally the same, the right to remain in the country of refuge is
more conditional than for refugees, which is usually expressed by being
granted a permit to stay in the country for a limited time period.
This applies in general to persons with subsidiary status, but such
rights are further restricted for persons with a criminal background
in that exclusion and at times danger to the security or community
 
2 For instance, the rights are the same in Canada (see Intergovernmental Consultations on
 Asylum Procedures: Report on Policies and Practices in IGC
Participating States ) at 113), online (pdf):
(ibidibidibid at 450–51).
 Asy-
lum Procedures, ibid at 51); one year in Belgium (ibidibid
ibidibid at 407).
Alternatives to Refoulement | 707
considerations can also be applied to persons applying for subsidiary
status. In such situations, only a suspension on removal until the situa-
tion in the country of removal improves is granted, although in some
countries this minimal right applies to all persons with subsidiary pro-
tection status.
However, the assumption that a situation in a country with serious
human rights violations will improve will not always be correct, cer-
tainly not in the short term. For that reason, countries have sought other
solutions to deal with the conundrum of at times having very serious
criminal refugees on their territory whose deportation is prohibited by
human right obligations and who are usually not entitled, because of
their criminality, to a regular type of immigration status. This chapter
will examine the most common devices developed in the countries of
interest: the criminal prosecution of criminal refugees, the extradition to
their country of origin, long-term detention, and humanitarian solutions.
When assessing the ecacy of those solutions, it should be kept in
mind that the population in question diers depending on the type of
crimes they have been involved in. For instance, persons who have com-
mitted war crimes or crimes against humanity typically will come to a
country of refuge to “retire” and will not likely represent a danger to the
community, which, while not a consideration for a refoulement assess-
ment under the Refugee Convention (which only applies to persons who
have obtained refugee status to which they are not entitled due to their
exclusion), will not make them good candidates for any type of deten-
tion, let alone long-term detention. On the other hand, persons with a
4 Canada (Asylum Procedures, above note 2 at 120).
5 Ibid 
6 A Belgian decision recently mentioned this dilemma and pointed out that this is not some-
dam (the Netherlands), Undesirable and Unreturnable? Policy Challenges Around Excluded
Asylum Seekers and Other Migrants Suspected of Serious Criminality Who Cannot Be Removed
264.267, 25 November 2021. For an overview of policies regarding such persons in countries
Study on
the Exchange of Information Between European Countries Regarding Persons Excluded from
Refugee Status in Accordance with Article F Refugee Convention
708 | Exclusion and Refoulement: Criminality in International and Domestic Refugee Law
committed terrorist background might continue to present a danger both
to the country of refuge and to the country of origin, justifying more
strict detention measures. Then there are persons who might have been
excluded for either low-level common crimes or for peripheral involve-
ment in such crimes who do not present a danger, nor do they evoke a
sense of revulsion for the acts committed, and, as such, might benef‌it
from a certain level of integration into the country of refuge’s society.
Before discussing the attempts of countries to put criminal refugees on
trial, it is necessary to discuss the international obligation to prosecute
or extradite (the aut dedere aut judicare principle), as well as the con-
cept of universal jurisdiction, which is the type of jurisdiction in play
in the nine countries of interest in this study.
The obligation to prosecute or extradite refers to the alternate
obligation contained in several multilateral treaties designed to secure
international cooperation in the suppression of certain kinds of serious
criminal conduct. While this obligation is framed in dierent ways in
these treaties, it essentially requires a state, on whose territory a perpe-
trator of a serious crime is present, to either extradite this person to
another state that is prepared to put them on trial or have them pros-
ecuted in its own courts.
There are many multilateral treaties that contain some variation
of this duty to prosecute or extradite. These variations can generally
be grouped into three categories. The f‌irst category contains treaties
 International & Transnational Criminal Law
Irwin Law, 2020) at 21–22, 103–4, and 370–72; see, also, Questions Relating to the Obligation
to Prosecute or Extradite (Belgium v Senegal)
The Obligation to Extradite or Prosecute
(aut dedere aut judicare): Final Report of the International Law Commission
A74/10, Draft Articles on Prevention and Punishment of Crimes Against Humanity, with Com-
mentaries, International Law Commission, 2019 at 92.
 Aut Dedere, Aut Judicare: The Duty to Extradite or
Prosecute in International Law 
that contain such an obligation, while a 2010 study for the International Law Commission
Report of the International Law Com-

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