Protecting Civilians During Violent Conflict by Igor Primoratz David W. Lovell

Author:Igor Primoratz, David W. Lovell [Igor Primoratz, David W. Lovell]
Language: eng
Format: epub
ISBN: 9781409476856
Barnesnoble:
Publisher: Ashgate Publishing Ltd
Published: 2013-04-28T00:00:00+00:00

Exclusion from Protection or Status

The changed nature of war in the late-twentieth and early twenty-first centuries has ramifications not only for the inclusive clauses of the refugee definition and the concept of complementary protection, but also for the refugee definition’s exclusion clauses. Not only is there a perception that ‘everyone is fighting everyone else’, but there is a fear ‘they’ might bring the fight with them. In Australia, for example, some of the debate about Sri Lankan boat arrivals has centred on the ‘links’ between asylum-seekers and the Tamil Tigers. An article in The Australian newspaper quoted the Sri Lankan Government’s assessment that between 25 and 50 per cent of Tamil asylum-seekers in Australia had links to the Tigers84 – a group that the Sri Lankan Government official compared with Al Qaeda.85

The point was made that the Tigers have not been listed as a proscribed terrorist group in Australia.86 Listing would bring into play various offences, including knowing membership of a listed terrorist organization,87 whether or not that offence occurred in Australia,88 which could then have consequences for refugee status under either the exclusion clauses in Article 1F or Article 33(2)89 of the Refugee Convention, although the significance of listing was not properly unpacked in the article. The uncritical emphasis on listing of terrorist groups steers public attention away from the issue of what sort of humanitarian protection is due to individual asylum-seekers and assists in the perception that immigration control is linked with national security, while ignoring the protections against dangerous asylum-seekers that are already provided within the Refugee Convention, and conveniently ignoring the dilemmas with which such asylum-seekers confront us.90

Three important points need to be made here. First, the Refugee Convention does not oblige Australia or any other party to the convention to accept terrorists as refugees. Second, a ‘link’ to a group that engages in terrorist activity, whether listed or not, is insufficient as a matter of international law to exclude an asylum-seeker from protection as a refugee. Finally, in the context of a civil war characterized by war crimes and crimes against humanity on both sides, and in which the government prevailed solely because of the brutal measures it deployed,91 the situation of excluded asylum-seekers raises pressing ethical questions.

The framers of the Refugee Convention were alive to the possibility that persecutors fleeing prosecution might claim refuge. As a result, Article 1F of the convention contains an exclusion clause, as follows:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

Terrorist activities or offences may be captured by all three of the categories of excluded acts.

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