Resisting criminal organizations: reconceptualizing the "political" in international refugee law.

• Author: Khoday, Amar

This article examines and reconstructs the term "political" in the 1951 Convention Relating to the Status of Refugees. Individuals may be eligible for refugee status if they can prove that they have a well-founded fear of persecution for, amongst other reasons, their political opinion. At the same time, individuals are excluded from obtaining refugee status where there are serious reasons for considering that they have committed a serious non-political crime. For those resisting persons or entities wielding oppressive power, the meaning of the term "political" in these provisions has particular importance. Where the targets of resistance are criminal organizations, however, courts and tribunals have been, for the most part, reluctant to recognize such resistance as manifesting a political opinion.

Given the demonstrated power of criminal organizations, this article contends that opposition to these entities should be viewed as being "political". Through an examination of the text, context, and purpose of the Refugee Convention, it argues that a broader understanding of the term "political" is reasonable if not compelling. The article examines the conflicting jurisprudence and discourse surrounding "political opinion" and "political crimes". Despite some strong voices in support of a more traditional state-centric interpretation, others have advanced more robust articulations that account for the dynamic nature and diversity of power transactions between citizens and powerful non-state actors. Finally, the article examines the substantial power of drug cartels and youth gangs in particular Central American states to illustrate that they exercise de facto control in substantial geographic spaces. As such, resistance to such entities should properly be viewed as "political" within the meaning of the Refugee Convention.

Cet article examine et reconstruit le terme > tel qu'il apparait dans la Convention relative au statut des refugies de 1951. Un individu est admissible a l'obtention du statut de refugie lorsqu'il craint, avec raison, d'etre persecute du fait de ses opinions politiques. Cependant, certains individus se voient prives du statut de refugie lorsqu'il existe des raisons importantes de croire qu'ils ont commis un crime non politique grave. La signification du terme > revet done une importance critique, particulierement pour ceux qui sont engages dans des actions de resistance contre des personnes ou des entites exergant un pouvoir oppressif. Les cours et les tribunaux sont generalement reticents a caracteriser de politique les activites de resistance aux organisations criminelles.

Considerant le pouvoir important que possedent les organisations criminelles, cet article soutient que les activites de resistances a ces organisations criminelles devraient etre considerees comme etant >. A travers un examen du texte, du contexte et de l'objectif de la Convention, l'auteur avance qu'une construction moins etroite du terme > est a tout le moins raisonnable, sinon probante. Cet article examine la jurisprudence et les discours contradictoires relatifs a la comprehension des termes > et >. Malgre un appui vocal pour l'interpretation traditionnelle limitant ce qui est politique au domaine de l'Etat, plusieurs soutiennent une articulation plus robuste tenant compte de la nature dynamique et des sources diverses du pouvoir. Enfin, cet article examine le pouvoir substantiel des cartels de drogues et des gangs de rue dans certains etats de l'Amerique centrale de maniere a illustrer comment ces organisations exercent un controle de facto sur de nombreux territoires. En ce sens, la resistance a de telles entites devrait etre caracterisee de > tel que defini par la Convention.

Introduction I. Text, Context, and Purpose II. Assessing the State of the "Political"--Narrow Frames A. Political Opinions B. Political Crimes III. Substance over Form? Power as the Central Feature of the "Political" IV. Resisting Criminal Organizations A. Drug Cartels in Mexico B. Gang Activity in Central America C. Resistance to Criminal Organizations Conclusion Political opinion should be understood in the broad sense, to incorporate any opinion on any matter in which the machinery of State, government, society, or policy may be engaged. (1)

United Nations High Commissioner for Refugees

The [Refugee Convention] was intended to operate in a wider world. It was adopted to address the realities of "political crimes" in societies quite different from our own. (2)

Justice Michael Kirby, High Court of Australia

Introduction

There is a long and established history (3) of individuals and communities (4) engaging in various forms of resistance (5) with the aim of confronting dominant or hegemonic (6) power. (7) In numerous instances, states--and the authority they wield--often serve as the main source of oppression against which resistance is mounted. (8) Yet, not all power exerted and imposed within a society resides in the authority of the state or is perpetrated by state actors. As political scientist and resistance scholar Gene Sharp asserts, "[a]t times the existing informal and noninstitutionalized power capacities and networks may modify, rival, or even surpass the actual power capacities of the official power structure." (9) Power is also situated within and is exercised in numerous social contexts by non-state actors--including within families, (10) social groups and communities, (11) work contexts, (12) and other social spaces. (13) The state in such circumstances is not necessarily directly involved. (14) Within such varied social contexts, power may be deployed oppressively and through the use or threat of force. A nuanced understanding of resistance must account for power that is situated in social environments and institutions outside of, and unaffiliated with, the state. Accordingly, in this article, I define resistance to include individual and/or collective acts that challenge the dominant or hegemonic power and authority of another individual, group, and/or entity--regardless of whether such authority is rooted in, or affiliated with, state power. (15)

Working from this recognition of non-state actors holding power, this article looks at the notion of resistance toward particular types of non-state oppression perpetrated by wealthy and well-armed criminal organizations and gangs. Such criminal organizations exercise considerable power in several countries. They impose their own unofficial norms and rules on those whom they control. (16) Annette Idler and James Forest assert that "[n]on-state actors--violent or otherwise--who have power over a local populace often play by a different set of rules than the formal governments of nation-states. Trust is established not by a legal system or formal contract between a leader and those governed, but by informal systems of traditional customs and moral codes." (17) In using the term "criminal organizations", I am not referring to organizations and groups with explicit aims or aspirations to overthrow the state or government in a particular country or to create an independent state. Such organizations are increasingly referred to as terrorist organizations--particularly where they employ violence--and, as such, could be viewed as a type of criminal organization. (18) In this article, my focus is on criminal organizations that have as their principal objectives the continuation of their unlawful business practices but which are not aimed at overthrowing a government or assuming the formal reins of power. (19)

The dominant power and oppression of such criminal organizations do not go unopposed. While governments confront such power, private citizens have also done so through various means: the use of force; (20) refusal to be forcibly conscripted; (21) rebuffing demands to carry out certain commands; (22) or by reporting such organizations' activities to the authorities. (23)

Predictably, the story does not always end well for resisters. They are often subjected to or threatened with retribution including physical harm or death. Some flee and seek protection in a third party state and seek refugee status under the 1951 Convention Relating to the Status of Refugees (24) and/or the 1967 Protocol Relating to the Status of Refugees (25) Resisters of criminal organizations, however, have not met with tremendous success in securing refugee status. (26)

In order to qualify for refugee status under article 1A(2) of the Refugee Convention, an individual must demonstrate, among other criteria, that they have a "well-founded fear" of persecution "for reasons of race, religion, nationality, membership in a particular social group or political opinion," and are unwilling or unable to return to their country of nationality or place of last habitual residence on account of such fear. (27) Many resisters may seek to obtain refugee status by asserting that they have a well-founded fear of persecution based on their political opinion--which may be imputed from their actions (28)--or membership in a particular social group. (29) With respect to proving an asylum claim based on political opinion, a resister must show that the persecutor seeks to persecute her because of her political opinion. (30)

Also relevant to those who have committed criminal acts as part of their resistance, article 1F(b) excludes individuals about whom there are serious reasons to consider have committed "serious non-political crime [s]." (31) By implication, the phrasing permits those who have engaged in political crimes to avail themselves of the protections of the Refugee Convention, assuming all other requirements have been met and no other exclusion clauses apply. (32)

In law, the interpretation of a word or distinct phrase can have a substantial impact on whether an individual may successfully assert her legal rights (33) and/or access certain remedies or benefits. (34) An important aspect to many claims by resisters...