The Influence of Transnational Criminal Law on Refugee Law

AuthorJoseph Rikhof
ProfessionAdjunct Professor, University of Ottawa, Faculty of Common Law
e Inuence of Transnational Criminal
Law on Refugee Law
It is generally accepted that there are synergies between transnational
criminal law (TCL) and other disciplines of public international law
which touch on individual criminality, such as international criminal
law (ICL) and international humanitarian law (IHL). It is also generally
thought that areas of public international law that address the rights of
victims of such crimes, such as international human rights law or refugee
law, are less suited to benet from TCL notions and concepts. However,
TCL has had inuence on some areas of refugee law and this chapter will
discuss the interaction between the two elds.
* Adjunct Professor, University of Ottawa, Faculty of Common Law. He is rec-
ognized internationally as an expert in the area of refugee criminality and has
sixty-ve publications in this and related areas, including the books e Criminal
Refugee: e Treatment of Asylum Seekers with a Criminal Background in International
and Domestic Law (Dordrecht: Republic of Letters Publishers, , with a second
edition now called Exclusion and Refoulement: Criminality in International and
Domestic Refugee Law, Toronto: Irwin Law, forthcoming in ); as co-author
with Robert J. Currie, International and Transnational Criminal Law, d ed
(Toronto: Irwin Law, ) and d ed (Toronto: Irwin Law, ); and as co-author
with Terje Einarsen, International Criminal Law: A eory of Punishable Participa-
tion in Universal Crimes (Oslo: Torkel Opsahl Epublisher, ).
 
Refugee law is based on two pillars. e rst one is that an asylum seeker
who fullls the requirements of being a refugee will be granted asylum.
e second one is that a person who has received refugee status cannot
be removed from the state of refuge, which has granted this status against
the state of origin from which asylum was claimed; the latter is called
protection against refoulement. Upon receiving refugee status, a person
is entitled to basic rights according to the Refugee Convention, such as
the right of association (article ), employment (articles –), housing
(article ), education (article ), social security (article ), and freedom
of movement (article ).
In order to receive refugee status, a person has to show a “well-
founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling
to avail himself of the protection of that country.” Such an assessment is
based on both past and future fear of persecution. Since this concept of
persecution was framed immediately after World War II, and since not all
issues arising out of situations of turmoil causing refugee movements are
covered by the Refugee Convention, new concepts such as complementary,
temporary, and subsidiary protection have been developed at the global,
regional, and national levels to ll the gap between new realities and the
existing convention’s legal regime. Similarly, the notion of refoulement has
also undergone changes over the last decades.
e Refugee Convention contains exceptions against refoulement,
which is based on the same grounds as contained in the denition of
refugee, namely persecution. To avoid situations whereby a person could
be expelled who might be exposed to other human rights abuses, or who
falls outside the groups mentioned in this provision, regional and national
Convention Relating to the Status of Refugees, (),  UNTS  [Refugee Convention].
Ibid, art A().
For details see Joseph Rikhof, Exclusion and Refoulement: Criminality in International
and Domestic Refugee Law (Toronto: Irwin Law, forthcoming in ) at –.
ey can be found in arts () and () of the Refugee Convention; the excep-
tions based on the commission of very serious criminal oences or on grounds of
national security or public order, usually when occurring in the country of refuge;
for a detailed study of these exceptions see ibid at –.

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