Blog post written by Dr James C. Simeon (York University) who will convene the upcoming Complicity and Exclusion from Asylum Workshop that will be held at the Lauterpacht Centre from International Law (LCIL) and sponsored by the Refugee Law Initiative, to be held on Friday 29 June 2018.
The determination of refugee status, whether by States under the 1951 Convention relating to the Status of Refugees and/or regional refugee rights instruments or the UNHCR under its statute and mandate, includes a number of essential components: inclusion, exclusion, and cessation. Exclusion is an integral part of determining who is a Convention or a Mandate refugee. The exclusion provisions of the 1951 Convention comprise Articles 1D, 1E and 1F. Article 1F excludes those refugee applicants, where there are “serious reasons for considering:” who have committed a crime against peace, a war crime or a crime against humanity; who have committed a serious non-political crime prior to seeking protection in their host country; and, those who are guilty of acts that are contrary to the purposes and principles of the United Nations.
There are a number of important aspects to the, so-called, Exclusion Clauses of Article 1F(a), (b) and (c). First, Article 1F incorporates both international, including regional, and municipal law. Secondly, all three subsections deal with serious criminality and gross breaches in fundamental human rights and dignity amounting to persecution. Thirdly, the Exclusion Clauses are the loci for the intersection of various branches of public international law, including: international criminal law; international humanitarian law; international human rights law; and, international refugee law. Fourth, they are relevant in times of war and in times of peace. Accordingly, the multivariate, intersecting, and elemental nature of Article 1F to defining who ought to receive refugee protection, thus, demands, by necessity, a thorough interrogation of the theoretical, normative and legal underpinnings of the Exclusion Clauses. Article 1F has contributed to the progression of international refugee law through its interaction with other branches of public international law and, especially, international criminal law.
The Theoretical, Normative and Legal Bases of Complicity and Exclusion
It is axiomatic that those who are responsible for persecution should not benefit from a law that is intended to protect the victims of persecution. The United Nations High Commissioner for Refugees has described such persons as “undeserving” or “unworthy” of international refugee protection. From a moral perspective, it might be reasonable to argue that those who persecute and/or denigrate the human dignity of others or who are party to the persecution and/or the denigration of the human dignity of others have disqualified themselves from international protection. Nevertheless, it has been argued that it is exigently wrong to label anyone as “undeserving or unworthy” of their fundamental human rights and human dignity, given that all human rights are universal, inalienable, indivisible, interdependent, and interrelated. For instance, Ben Saul has argued that, “Human rights are rights, not privileges, and cannot be taken away for bad behaviour.” Satvinder Juss has been equally critical of the use of the term “unworthy.” Indeed, he asserts that,
The law is worryingly moving towards a concept of “unworthiness for asylum”, which, unless arrested by the courts, looks set to undermine the institution of refugeehood itself. As States develop new counter-insurgency measures amid new forms of warfare, “complicity”, by way of association in the nefarious acts of others, is now deemed by Governments to be enough to reject genuine asylum-seekers.
Others have taken equally critical stances on how the Exclusion Clauses are applied and interpreted in refugee status determination.
Those who have committed serious international and domestic crimes prior to their arrival in their country of asylum and are excluded from refugee protection, nevertheless, may have a well-founded fear of persecution and, consequently, cannot be returned to their countries of nationality or former habitual residence. They are protected by the principle of non-refoulement, commonly accepted as customary international law. Exclusion from refugee protection does not imply that the person will be subject to removal by their host State. If not, the excludee is more likely than not to end up in a state of “legal limbo.” The persons in such a state have no legal status in their host State but cannot be removed and they are in a precarious state of great uncertainty which can be very trying emotionally. There are workable alternatives to leaving persons in a constant state of precarious “legal limbo.”
The vast majority of those who are excluded from refugee protection are excluded under Article 1F(a) on the bases of their complicity in the commission of a war crime or crime against humanity. This is less the case for those who are excluded under Article 1F(b) and (c), but, nonetheless, complicity plays an important role.
The Canadian Criminal Code, for example, follows this general legal definition of complicity in the following terms, under Part 1, Section 21, Parties to Offence:
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person;
(c) abets any person in committing it.
Article 25(3) of the 1998 Rome Statute defines what constitutes individual criminal responsibility and covers complicity in terms of all of the above noted definitions and further clarifies by outlining in (c): “For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.” And, in (d) goes further in stating: “In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.” This is certainly a wide remit for covering who could bear individual criminal responsibility for serious international crimes.
It is worth stressing then that those who are excluded from refugee protection not only include the direct perpetrators of serious international crimes but their accomplices or the indirect perpetrators who aid and abet, counsel, or in any other way contribute to the commission of serious international criminality.
Discerning what Complicity is from the Relevant National and International Jurisprudence
It is reasonable to note that Article 1F(a) crimes involve individual and collective criminal responsibility on a wide scale. For instance, a crime against humanity, that includes the crime of genocide, involves “widespread and systematic attacks against any civilian population” with the aim of “destroy[ing], in whole or in part, a national, ethnical, racial, or religious group.” Obviously, this involves extensive planning and organizing that includes large numbers of people who must support, sustain and execute such heinous international crimes. It follows, then, that the numbers of those who are potentially excludable for being complicit in serious international crimes could be many more times the number of actual direct perpetrators. One of the most critical questions with respect to complicity and exclusion that, perforce, must be examined and analyzed in detail is: “What degree of contributory criminal liability would be sufficient to make a refugee applicant complicit and, hence, excludable under Article 1F?”
Further, given the number, intensity and nature of war and protracted armed conflicts in the world today and the incidents of the use of extreme violence such as terrorism, it is reasonable to assume that the Exclusion Clauses will likely grow in importance over time. This underscores the need, relevance, significance and timeliness of a Workshop that is focused on the subject of “Complicity and Exclusion from Asylum” and its’ potential for understanding the development and advancement of refugee law and its adjudication in refugee status determination and on appeal. For example, the Supreme Court jurisprudence on exclusion for complicity under Article 1F is growing in volume and in sophistication and includes such leading common law judgements as: Ezokola, Febles, and Pushpanathan from Canada; JS Sri Lanka, Al-Sirri, from the United Kingdom; Neguise v. Holder from the United States; MIMA v. Singh and FTZK v. MIBP from Australia; and, Attorney-General v. Tamil X from New Zealand. Likewise, the jurisprudence, emanating from the international courts such as the European Court of Human Rights (ECtHR), Saadi v. Italy, and the Court of Justice of the European Union (CJEU), B and D, are relevant cases on point, as are many others rendered by the International Criminal Court (ICC).
The Complicity and Exclusion from Asylum Workshop that will be held at the Lauterpacht Centre from International Law (LCIL) and sponsored, in part, by the Refugee Law Initiative (RLI), to be held on Friday 29 June 2018, will provide the time and space to consider complicity and exclusion in international refugee law and practice. For more information on the Call for Abstracts and how to register for the Workshop, please visit this website.
 UNHCR, Refugee Status Determination: Identifying who is a refugee, Self-Study Modules 2, 1 September 2005, http://www.refworld.org/pdfid/43141f5d4.pdf. (accessed November 30, 2016)
 Joseph Rikhof, “Exclusion and International Law: Sui Generis or Overlap?” International Journal on Minority and Group Rights, 20 (2013): 199-232.
 Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982. Wherein it states: “The rationale of Art. 1F of the Convention is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a convention designed to protect those refugees.” Case notes at paragraph 4.
 Satvinder Juss, “Complicity, Exclusion and the ‘Unworthy’ in Refugee Law,” Refugee Studies Quarterly, (2012) 31(3): 1-39., Abstract.
 Jennifer Bond, “Excluding Justice: The Dangerous Intersection between Refugee Claims, Criminal Law, and ‘Guilty’ Asylum Seekers,” International Journal of Refugee Law, (2012) 24(1): 37-59. Asha Kaushal and Catherine Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusion,” International Journal of Refugee Law (2011) 23 (1): 54-92. Pia Zambelli, “Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law.” International Journal of Refugee Law (2011) 23 (2): 252-287 first published online April 2, 2011 doi:10.1093/ijrl/eer004. From a feminist and comparative perspective, see Kate Ogg, “Separating the Persecutors from the Persecuted: A Feminist and Comparative Examination of Exclusion from the Refugee Regime,” International Journal of Refugee Law, (2014) 26 (1): 82-111.
 Refugee Law Initiative, School of Advanced Studies, University of London, “Undesirable and Unreturnable? Policy Challenges Around Excluded Asylum Seekers and Migrants Suspected of Serious Criminality but cannot be removed,” http://rli.sas.ac.uk/research-projects/undesirable-and-unreturnable. (accessed December 1, 2016)
 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40,  2 S.C.R. 678; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68,  3 S.C.R. 431; Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982.
 R(JS)(Sri Lanka) v Secretary of State for the Home Department  UKSC 15; Al-Sirri v Secretary of State for the Home Department,  UKSC 54.
 MIMA v. Singh  HCA 7; FTZK v. MIBP  HCA 26.
 Attorney-General v Tamil X  NZSC 107,  1 NZLR 721.
 ECtHR, Saadi v. Italy [GC], No. 37201/06, 28 February 2008, para. 138; ECtHR, Ismoilov and Others v. Russia, No. 2947/06, 24 April 2008, para. 127; ECtHR, Ryabikin v. Russia, No. 8320/04, 19 June 2008.
 CJEU, Joined Cases C-57/09 and C-101/09, Bundesrepublik Deutschland v. B and D, 9 November 2010.
 For instance, see Katanga (ICC- ICC-01/04-01/07), Trial Chamber, March 7, 2014, paragraphs 1383-1387.
Photograph: ©Wikimedia Commons, International Criminal Court
The views expressed in this article belong to the author and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.