Blog post written by Dr James C. Simeon (York University, Canada) and Professor Elies van Sliedregt (University of Leeds).
The mass production of refugees from zones of extreme political violence in the form of protracted non-international armed conflict has resulted in the greater prominence of the so-called ‘Exclusion Clauses’ of the 1951 Convention relating to the Status of Refugees, Article 1F. How serious international crimes and breaches of international human rights produce mass forced displacement and, with it, the issues dealing with the ‘Exclusion Clauses’ has come to the fore as one of the areas of significant concern in international refugee law. The proper application and interpretation of Article 1F for those who are fleeing protracted armed conflict and extreme political oppression and whether there are ‘serious reasons for considering’ that they may have ‘committed’ or may be ‘guilty’ of serious international crimes is of one of the critical issues in public international law, in general, and international refugee law, in particular.
The situation in the world today is dire, with at least 49 armed conflicts taking place in 2017 and nearly 69,000 killed due to protracted intrastate armed conflict, the overwhelmingly predominant form of armed conflict in the world today. And, the devastating impact that these conflicts have on the millions of people who are victimized by the atrocities of modern warfare. Many of these protracted internal armed conflicts tend to be internationalized. According to the Peace Research Institute Oslo (PRIO), the growing trend of the “internationalization of conflicts over the past few years is worrisome as these types of conflicts are on average more violent, more difficult to solve, and last longer”.
Devastating ‘New Wars’
The ‘new wars thesis’ highlights the fundamental nature and principal characteristics of today’s warfare. According to Mary Kaldor, a new ‘organized violence’ has developed that has the following characteristics: a blurring of the line between inter-state and inter-group violence; crime; large scale human rights abuses; the preoccupation with ‘identity politics’; civilians are deliberately targeted; the wars are financed through criminal means; these wars emerge in the background of a dislocating globalization with the strong imprint of international, transnational and diasporic influence. Astonishingly, Kaldor argues that ‘new wars’ are, in fact, a “mutual enterprise” where the two opposing sides need each other and, therefore, wars tend to be “long and inconclusive”. The ‘new wars thesis’ clearly has implications for forced displacement in the world today.
This is perhaps most evident when one considers the unprecedented and continuously escalating number of forcibly displaced persons in the world today. The UNHCR’s Global Trends: Forced Displacement in 2017, states that there are 68.5 million forcibly displaced persons in the world today and that this averages to an astonishing 44,400 people displaced from their homes every day. There were 16.2 million displaced persons in 2017: 11.8 million individuals were internally displaced; and, 4.4 million externally displaced refugees and asylum-seekers. Incredibly, more than two-thirds (68%) of the world’s refugees came from just five countries: Syria; Afghanistan; South Sudan; Myanmar; and, Somalia. All of these countries have been engulfed in protracted internal armed conflict for years, and, in some cases decades. Indeed, Syria has been often described as the world’s deadliest armed conflict. Sadly, more than half (52%) of the world’s refugees are children under the age of 18 years.
Statistics such as these appear to lend support to the ‘new war thesis’. In addition, with more than two-thirds of the world’s refugees coming from only five war torn countries it is strikingly obvious that protracted armed conflict is the principal ‘root cause’ of the world’s refugees today. But, even more to this very point, forced displacement is used frequently as a ‘weapon of war’.
Mass Forced Displacement as a Weapon of War
Kelly M. Greenhill has coined the phrase ‘weapon of mass migration’ and has defined the term ‘coercion engineered migration’ to refer to the “intentional creation, manipulation, and exploitation of migration and refugee crises”.[1] It is prosaic to note the close correlation between war, armed conflict, and forced displacement. While it is insightful to acknowledge and point out that, in many instances, forced displacement is deliberate and is used tactically and strategically to gain military advantage, if not, outright military victory, this point is too often ignored in refugee and forced migration studies. ‘Coercion engineered migration’ can constitute a serious breach of International Humanitarian Law and International Criminal Law. Under Customary International Humanitarian Law, acts of displacement of a civilian population are prohibited.
For instance, The Guiding Principles of Internal Displacement state:
All authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons.
Under the 1998 Rome Statute of the International Criminal Court, Article 7, Crimes Against Humanity, includes section 1(d) Deportation or forcible transfer of population, as a crime against humanity. And, section 2 (d) goes on to state:
(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.
Under Article 8, War Crimes, section 2(a) (vii) states:
Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(vii) Unlawful deportation or transfer or unlawful confinement.
Accordingly, it is patently obvious that forced displacement, in either an international or non-international armed conflict, can constitute a serious international crime. Indeed, this could also apply within the context of genocide, another serious international crime. Article 6, Genocide, of the 1998 Rome Statute of the International Criminal Court, states at “(e) Forcibly transferring children of the group to another group”. Indeed, under the Responsibility to Protect (R2P) doctrine, genocide, war crimes, ethnic cleansing and crimes against humanity are identified as the ‘atrocity crimes’.
International Crimes, Severe Violation of Human Rights, and Mass Forced Displacement
The relationship between serious international crimes, human rights, and forced migration deserves further exploration and explication. Forced migration caused by international and non-international armed conflict has led to an increase of refugee exclusion under Article 1F of the 1951 Convention relating to the Status of Refugees. Increasingly, Western States have resorted to Article 1F to exclude claimants from protection by referring to their (alleged) affiliation with a specific regime, organization or government, that are noted for their serious human rights abuses and/or international crimes, thereby raising potentially ‘serious reasons for considering’ that they may have been complicit in serious international crimes and/or human rights violations. The principles developed in the criminal law context figure prominently in exclusion assessments under Article 1F of the 1951 Refugee Convention. This is appropriate because the entire evaluation is based on determining whether the refugee claimant has committed and/or is guilty of a serious international crime; this makes him/her ‘undeserving’ of refugee protection. There is, however, a problem with the connection between international refugee law and international criminal law under Article 1F. It enables the import of broad concepts of liability; to the extent that it may, in fact, undermine the Convention’s purpose of protection.
It is opportune to interrogate and, possibly, to rethink the rationale of ‘undeserving’ of refugee protection. What does it mean to be ‘deserving’ of rehabilitation and/or, as some would have it, punishment? Where should we draw the line between criminal complicity and mere association with criminal conduct? The Refugee Convention was drawn up in the specific historical and political context of the WWII and the Nuremberg era; a time where the line between victors and vanquished, between war criminals and ‘genuine’ refugees, was easier to draw. Modern day refugee exclusion takes place in a different context, of civil war and terrorism. Also, it concerns a more differentiated group of refugee claimants, most of them occupying positions in the lower echelons of political or military organizations.[2]
Given the nature of 21st Century warfare, with its predominance of severe human rights abuses, criminality, and mass forced displacement, often as a weapon of war, rather, than its consequence, the deliberate targeting of civilian non-combatants, and, the blatant, repeated and consistent commission of acts of terrorism, all point to the necessity of an in depth examination of the use of the exclusion clauses by States and the UNHCR in the exclusion of those refugee claimants where there are ‘serious reasons for considering’ that they have (allegedly) committed or are found guilty of serious international crimes.
Challenging Convention and Forging New Constructive Pathways to Resolution
Given the state of the world’s ‘refugee crisis’, that appears to be ever escalating, and, given the number and the persistence of internationalized non-international armed conflicts, that are also seemingly also increasing, the use of the ‘Exclusion Clauses’ is becoming, ineluctably, ever more prevalent and significant in the determination of Convention refugee status. This underscores the relevance and the necessity of holding a research symposium on the interconnected issues of the ‘new wars’, serious international crimes, and the ever escalating forced migration. The conventional notions of who is ‘undeserving’ of refugee protection in the context of serious international criminality, the violation of fundamental human rights, and the overwhelming political, economic and social consequences of mass forced displacement on a global basis must be challenged and interrogated and new pathways forged.
The ‘Serious International Crimes, Human Rights and Forced Migration’ Symposium seeks to do just that at Osgoode Hall Law School, York University, Toronto, Canada, on Thursday, 30 May and Friday 31 May, 2019. We welcome all those who are equally interested and so inclined to join us.
Please see the Call for Papers at: https://nathanson.osgoode.yorku.ca/events/serious-international-crimes-human-rights-and-forced-displacement/.
[1] Kelly M. Greenhill, Weapons of Mass Migration: Forced Displacement, Coercion and Foreign Policy. Ithica: Cornell University Press, 2010.
[2] S.S. Juss, ‘The Notion of Complicity in UK Refugee Law’, Journal of International Criminal Justice, 2014, 1201-1216.
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