Introduction
| Author | Joseph Rikhof |
| Pages | 1-40 |
1
Introduction
Crime does not pay. This is a basic tenet of both moral and legal
value systems. While this adage is often substituted into the normative
alternative of “crime should not pay,” and while there might be his-
torical, regional, and cultural dierences in the meanings of the terms
“crime” and “pay,” it is still a fundamental concept that can be wit-
nessed primarily in criminal law and more recently in international
criminal law. This book will examine whether criminal conduct plays
a role in refugee law.
Asylum as a concept has been known since ancient times, but per-
sons with a criminal background were always treated with suspicion
and, depending on the time and place, would either not be granted
asylum or only in a limited form. When amorphous notions related
to asylum began to be crystallized in international treaties during the
twentieth century, again, criminality, while only pertaining to a very
small number of asylum seekers, caused sucient concern to the drafters
of the various instruments to warrant mention in several provisions in
those agreements. At times, but not always, such provisions had some
resemblance to concepts of criminality known in other areas of law,
specifically, domestic criminal law and, after the Second World War,
the nascent field of international criminal law. When states ratified the
international treaties or when international institutions applied these
Exclusion from Protection as Refugee: An Approach to a Harmonizing Inter-
pretation in International Law
International Journal of Refugee Law 37 at 47.
2 | Exclusion and Refoulement: Criminality in International and Domestic Refugee Law
instruments, they had to interpret these general provisions addressing
criminal behaviour while keeping in mind the purpose of asylum and
ensuring that these interpretations kept pace with both international and
domestic developments in regulating criminal conduct.
This book will assess how much refugee law has been in step with
the international and domestic regulation of criminal conduct. At the
international level, crimes such as genocide, crimes against humanity,
war crimes, terrorism, and organized crime have become the subjects of
international treaties and jurisprudence, while these types of criminality
as well as other areas of concern have been increasingly incorporated
into domestic criminal legislation. Since refugee law is used in the same
countries that are at the forefront of regulating these new types of crim-
inal behaviour, decision makers had to consider these parallel develop-
ments. This book will determine how successful this attempt has been
by comparing the legislation and jurisprudence in several countries and
contrasting those with the regulation of similar criminal conduct outside
refugee law. As well, the approach taken with respect to refugees with a
criminal background in these countries will be subjected to a compara-
tive analysis to reveal possible discrepancies and oer possible solutions.
The issue of criminality of asylum seekers cannot be examined in
isolation. The provisions in refugee instruments dealing with this aspect
form only a small portion of the entire text of such treaties, while sim-
ilarly only a small portion of the practice of refugee decision makers
deals with criminal questions. In order to place the notion of criminality
in a larger context, this introduction will set out the larger picture of
protection for refugee claimants. As well, since refugee law is a special-
ized area within the framework of human rights law, this part of the
book will begin with a general background of that area of law.
A. HUMAN RIGHTS LAW
As refugee law can be considered a subset of human rights law, and
since general human rights law has had an important impact on issues
lex
specialis;Complementary Protection in International Refugee Law
-
Forced Migration, Human Rights and Sec-
urity
Introduction | 3
associated with refugees, notably the prohibition against refoulement —
that is, the removal of a person to a country where this person might
be subjected to persecution, torture, or inhuman or cruel punishment or
treatment — it is useful to set out some general principles of human rights
law. While historically the concept of human rights had emerged in a
fragmentary manner at the domestic level in primarily Western European
and North American states, the horrors of the Second World War pro-
vided an impetus for the international community to begin devising an
international comprehensive regime for the protection of basic human
rights. The first steps in this direction were the Charter of the
United Nations and the Universal Declaration of Human Rights.
The former mentions “international co-operation . . . in promoting and
encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language or religion” as one of
the main purposes of the United Nations, while the declaration, albeit in
a non-binding format, provides more detail in thirty articles as to what
Cambridge International Law Journal
The Oxford
Handbook of International Refugee Law
See, also, in general, regarding the notion of lex specialis and its relationship to general inter-
Fragmentation of International Law: Diculties Arising
from the Diversication and Expansion of International Law
Legal Con-
sequences of the Construction of a Wall in the Occupied Palestinian Territory,
Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v Uganda)
The Law of International Human Rights Protection,
Press, 2019) at 9, 30, and 146.
ibid
for the various philosophical theories underlying the notion of human rights.
-
mission considered the preliminary draft of its drafting committee during its second session
terminology to be used in referring to the three documents that together were to constitute
the International Bill of Human Rights
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