The Influence of Transnational Criminal Law on Refugee Law

• Author: Joseph Rikhof
• Profession: Adjunct Professor, University of Ottawa, Faculty of Common Law
• Pages: 93-114

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e Inuence of Transnational Criminal

Law on Refugee Law

JOSEPH RIKHOF*

A. INTRODUCTION

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, ).

 

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B. OVERVIEW OF BASIC REFUGEE LAW CONCEPTS

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 –.