Exclusion - Introduction and 1F(a) Crimes

AuthorJoseph Rikhof
 
Exclusion —
Introduction and 1F(a) Crimes
As we saw in the previous chapter, the international community had
grave concerns about the atrocities committed during the Second World
War and was determined to address the issue of impunity of the persons
who had perpetrated such acts. Most of the law of crimes against peace,
war crimes, and crimes against humanity was developed in the immedi-
ate aftermath of the Second World War and consisted of the instruments
setting up the two international military tribunals (IMTs) in Nuremberg
and Tokyo, the legislative authority enabling domestic courts to deal
with war criminals in Europe and Asia, the caselaw developed by these
tribunals and courts, the adoption of the  Genocide Convention,
 
Trials of War Criminals Before the Nurem-
berg Military Tribunals
Trial of the Major War Criminals
also been some reporting of war crimes trials in Annual Digest and Reports of Public Inter-
national Law Cases, which changed its name in 1950 to International Law Reports.
124 | Exclusion and Refoulement: Criminality in International and Domestic Refugee Law
and the passing of the Geneva Conventions, which regulated the con-
duct of war, including its violations.
Another main issue facing the international community, in addition
to bringing war criminals to justice and the strengthening of human
rights norms, in times of both peace and war through human rights
instruments and improved rules of war, was a new framework for deal-
ing with the large number of refugees. While the main treaty in this area,
the Refugee Convention, was primarily a vehicle for the protection of
people seeking asylum status, it was felt that persons who had been
involved in criminal activity should not benef‌it from such generosity.
With the memory of the Second World War still fresh in the mind of
the drafters of the Refugee Convention, a clause denying asylum rights
to criminals did not take long to become embedded in the text of this
instrument, resulting in the exclusion clause, which reads:
F. 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 coun-
try 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.
While there are legal dierences between the three exclusion grounds,
similarities do exist between them, from both a legal perspective as well
as arising from factual situations, which do not tend to divide them-
selves up along neat legal principles. For instance, a bombing attack
with a large number of victims during an armed conf‌lict and designed to
terrorize people, which was committed before the perpetrator came to a
country of refuge, could fall within the parameters of all three exclusion
 
Exclusion — Introduction and 1F(a) Crimes | 125
grounds. This overlap in the use of the dierent aspects of article 1F is
echoed in the jurisprudence of the countries under consideration. For
instance, several decisions in New Zealand and the United Kingdom
combined the use of articles 1F(b) and 1F(c) for the same underlying
fact pattern, while in Australia, article 1F(a) is regularly used in combin-
ation with article 1F(b), as is also the case at times in New Zealand. In
Canada, the administrative tribunal dealing with refugee matters used
to combine article 1F(a) with article 1F(c) in Quebec and in some cases
has used all three exclusion grounds for one situation, as have Australia
and the Netherlands. In this context, France tends to use article 1F(c)
almost exclusively for cases that are, for all intents and purposes, crimes
against humanity.
This chapter will focus on some procedural issues with respect to
exclusion in general as well as the crimes in article 1F(a) and will discuss
regarding the latter the relevant jurisprudence sequentially in relation to
each of the categories of crimes in that provision while also examining
the one international crime not mentioned in article 1F, genocide.
1) The Work of the UNHCR in Exclusion
The United Nations High Commissioner for Refugees (UNHCR) plays
an important role in refugee law and refugee determinations, not only
as the United Nations agency that provides guidance internationally in
 -
tion Directive, 2d ed (2020) at 54, online (pdf): 
 
such as the Operations Manual, Enforcement 18 — Human or International Rights Violations,
ment entitled The relationship between safeguarding internal security and complying with
international protection obligations and instruments
of the Geneva Convention of 28 July 1951 relating to the status of refugees

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