Security in Refugee Movements

The Concept of Exclusion

While international law recognizes the need to accept and protect refugees fleeing persecution in their home countries, it also recognizes the need to bring the perpetrators of serious human rights abuses to justice and to maintain state security. For this reason, the exclusion clauses of the 1951 UN and 1969 OAU Conventions exclude those who have committed serious international crimes from their mantle of protection. Although these individuals may meet all the other requirements for refugee status, they are considered undeserving of international protection as refugees because of their past actions. They may, however, still be protected by other human rights instruments, if applicable. For example, the Convention Against Torture would forbid the return of someone excluded from refugee protection to their home country, if there were substantial grounds for considering that they would face torture upon return.

Events in Zaire following the end of the genocide in Rwanda dramatically illustrate the consequences of failure to apply the exclusion clauses. Meanwhile, at the opposite end of the spectrum, there is also the danger that governments will apply exclusion in an overly broad way. Jurisprudence in developed countries has shown a trend towards expanding the list of crimes which merit exclusion. In 1998, the United States Supreme Court, for example, considered the case of a Guatemalan asylum seeker. The INS contended that the man was ineligible for asylum because, in the course of a political protest in response to the Guatemalan government’s raising of student bus fares and inaction in investigating the disappearances of university students, he had pulled several passengers off a bus and proceeded to vandalize the bus as well as destroying some store merchandise. Human Rights First filed an amicus brief in the case, arguing that the man’s crimes were not sufficiently grave to merit exclusion from protection. Despite the fact that the man would face serious persecution, possibly even death, on return to Guatemala, the Supreme Court ruled that he was not a refugee and could be deported.

It is evident that there is a need to develop clear guidelines as to which crimes render a person ineligible for asylum and how this should be done. There is also a need to address the mechanisms for dealing with those who have been excluded. Should they be returned to their country of origin? In some cases, the excluded individual cannot be returned to their home country. Should they be tried in the host country? What if there is the possibility of handing them over to an international tribunal or the International Criminal Court? In response to this need, Human Rights First launched a comprehensive research project to explore the legal elements of the exclusion clauses as well as several case studies of how governments had applied those legal principles in practice.

< Previous | Next >