Note on the Exclusion Clauses

EC/47/SC/CRP.29

NOTE ON THE EXCLUSION CLAUSES

I. Introduction

1. The international refugee instruments governing refugee law lay out criteria for the recognition of refugees. They also establish criteria by which individuals may be excluded from international protection. The term "exclusion clauses" refers to legal provisions designed to achieve this effect. Article 1F of the 1951 Convention includes a number of exclusion clauses:¹

"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."

2. Heightened interest in the possible use of exclusion clauses has followed a number of international developments, of which the conflicts in former Yugoslavia and Rwanda are obvious examples. As a consequence of those events, attention has been focused on the capacity of international mechanisms to identify and exclude undeserving claims, while furnishing international protection to genuine refugees. This paper elaborates on the function of exclusion clauses in refugee law, and their practical application.

A. Rationales of exclusion clauses

3. The exclusion clauses enumerated in Article 1F of the 1951 Convention operate to disqualify persons from the benefits of refugee status by reason of serious transgressions committed, in principle, prior to seeking asylum. The idea of an individual "not deserving" protection as a refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of refuge. The primary purposes of these exclusion clauses are to deprive the perpetrators of heinous acts and serious common crimes, of such protection, and to safeguard the receiving country from criminals who present a danger to that country's security. If the protection provided by refugee law were permitted to afford protection to perpetrators of grave offences, the practice of international protection would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum. From this perspective, exclusion clauses help to preserve the integrity of the asylum concept.

B. General principles governing application of exclusion clauses

4. Under the 1951 Convention, responsibility for establishing exclusion lies with States. UNHCR is competent in this regard, under its Statute. According to Article 1F of the 1951 Convention, persons are excludable where "there are serious reasons for considering" that they have committed the offences in question. States should, therefore, have substantially demonstrable grounds for invoking an exclusion clause. Decisions on exclusion should be clear and reasoned, and the claimant should be afforded a fair hearing, in view of the inherently serious effect of invoking exclusion clauses. In principle, decisions on exclusion may properly be made only in the context of a full examination of the grounds for a refugee claim.

5. The exclusion clauses are carefully enumerated in the 1951 Convention, and describe those situations in which persons who fulfil the positive requirements of recognition as refugees are nonetheless constrained from being recognized as such. Denying protection against return to the country of origin to someone with a well-founded fear of persecution can result in their continued persecution, or even worse. Use of these exclusion clauses is, therefore, an extreme measure. Exclusion clauses must be interpreted within narrow limits and in a manner which does not undermine the integrity of international protection.

6. Exclusion from refugee status will not always result in the individual's expulsion from the country of asylum, as the excluded person is still entitled to the protection of relevant municipal and international laws. For example, the person may still be protected against refoulement by Article 3(1) of the 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,² or Article 22(8) of the 1969 American Convention on Human Rights.³ The excluded person is also covered by relevant State laws governing due process and the rights of aliens.

II. The Categories of Excludable Offences and Individual Liability

7. The three categories of excludable acts and crimes specified in Article 1F of the Convention are: crimes against peace, war crimes and crimes against humanity, serious non-political crimes, and acts contrary to the purposes and principles of the United Nations.

A. Crimes under article 1F(a) of the 1951 Convention; crimes against peace, war crimes and crimes against humanity

8. These crimes are defined in a wide variety of legal sources, notably the 1945 Charter of the International Military Tribunal (the London Charter, Article 6) and the Statutes of the International Tribunals established to prosecute persons suspected of genocide and breaches of humanitarian law in Rwanda and former Yugoslavia.⁴ All three crimes under this exclusion clause are included in the draft statute for the proposed permanent international criminal court, namely genocide, crimes against humanity, war crimes and crimes against peace. Some excludable crimes may fall under more than one category, such as genocide, which can be considered both a war crime and a crime against humanity.

(i) Crimes Against Peace

9. This category of crimes relates to the planning or waging of a war of aggression, or a war in violation of international treaties. In 1974, the General Assembly defined "aggression" as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations", and this definition is retained in the International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind.⁵ As crimes against peace threaten the territorial integrity of States, excludable persons under this Article must represent States or State-like entities in the context of international armed conflicts.

(ii) War Crimes

10. This category refers to violations of international humanitarian law or the laws of armed conflict. Article 6(b) of the London Charter includes within this category, murder or ill-treatment of civilian populations and of prisoners of war, the killing of hostages, or any wanton destruction of cities, towns or villages, or devastation that is not justified by military necessity. Other acts identified as war crimes are the "grave breaches" specified in the 1949 Geneva Conventions and Additional Protocol 1, namely wilful killing, torture or other inhuman treatment (including biological experiments), wilfully causing great suffering or serious injury to body or health; indiscriminate attacks affecting civilians or those known to be hors combat; and forced population transfers. The 1993 Statute of the International Tribunal for former Yugoslavia also includes an extensive definition of war crimes. War crimes may be perpetrated against civilian or military victims in both internal and international armed conflicts, and individual liability for war crimes does not require a link between the culprit and a State or a State-like entity.

(iii) Crimes Against Humanity

11. These include inhumane acts such as murder, extermination, enslavement, deportation committed against any civilian population before or during a war. These and other crimes, such as torture, rape, and persecution, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds, also constitute crimes against humanity. Genocide, as defined in Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, is a crime against humanity.⁶ Crimes against humanity are characterized by their deliberate and targeted nature, by their especially heinous nature, and, in the case of genocide, by the intent to destroy a particular group, in whole or in part. Unlike war crimes and crimes against peace, crimes against humanity may also be committed in peacetime or in a non-war context, making this the broadest of the categories under Article 1F(a) of the 1951 Convention.

B. Individual liability for crimes under article 1F(a)

12. A crime against peace requires a connection between the individual's actions and a State or State-like entity in the context of an international conflict. In contrast, exclusion for war crimes and crimes against humanity may derive from internal conflict and does not require an individual's connection with State authority. As such, the actions of guerrillas, rebels, militias or armed civilians may be scrutinized for exclusion as crimes against humanity and war crimes.

13. A person may be excludable if he or she knew of the excludable offence and its criminal nature, intended to commit it, and exercised a moral choice to be involved.⁷ This exclusion clause may be invoked against a superior officer who had knowledge of offences committed by a subordinate and failed to take steps to prevent them. Subordinates cannot claim "superior orders" as a defence to exclusion, unless disobedience to the orders would have incurred grave danger for them or their family, and unless the danger to them exceeds the physical harm inflicted by them.

14. Excludability may not simply be presumed. If an individual requests asylum after having held positions of authority in a regime known to be responsible for serious human rights violations, exclusion may follow only if a fair enquiry establishes the elements of knowledge, intention and moral choice on the part of the individual concerned. The exclusion of members of organizations which commit crimes or advocate violence should be approached in the same way. Other relevant considerations include the individual's position in the hierarchy of the organization, and the extent to which membership was obtained voluntarily.

15. The measure of personal involvement required to establish exclusion must also be considered. While the exclusion clause will not apply to a passive observer of a crime, a person whose actions contribute to the crime, through orders, incitement or significant assistance, may be excluded. In one case, persons who willingly stood guard and took notes during torture sessions were properly disqualified from refugee status. By the same token, the exclusion clauses would apply to a medical practitioner who prepares and checks torture victims, or an administrator who prepares blacklists of candidates for genocide or ethnic cleansing.

C. Serious non-political crimes - Article 1F(b)

16. This Article excludes persons whose past criminal acts in another jurisdiction are especially egregious. The "seriousness" of a crime may depend on such factors as the extent of physical or property harm it causes, and the type of penal sentence it attracts within the particular legal system. Rape, homicide, armed robbery, and arson are examples of offences which are likely to be considered serious in most States. It is important to recall that the intention of this Article is to reconcile the aims of rendering due justice to a refugee, even if he or she has committed a crime, and to protect the community in the country of asylum from the danger posed by criminal elements fleeing justice. This Article should be seen in parallel with Article 33 of the 1951 Convention, which permits the return of a refugee if there are reasonable grounds for regarding the refugee as a danger to the security of the country or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the security of that country.

17. The serious crime must also be non-political, which implies that other motives, such as personal reasons or gain, predominate. Increasingly, extradition treaties specify that certain crimes, notably acts of terrorism, are to be regarded as non-political for the purpose of those treaties, although they typically also contain protective clauses in respect of refugees. For a crime to be regarded as political, its political objective must also, for purposes of this analysis, be consistent with the exercise of human rights and fundamental freedoms.⁸ Crimes which deliberately inflict extreme human suffering, or which violate jus cogens rules of international law, cannot possibly be justified by any political objective.

18. Even if the serious and non-political nature of a crime is established, a "balancing test" must be applied before this exclusion clause may be invoked. This test ensures that exclusion does not result in greater harm to the offender than is warranted by the alleged crime. Thus, its seriousness should be weighed against the level of persecution likely to be faced by the offender in the country of origin. If the persecution feared is so severe as to endanger the offender's life or liberty, then only an extremely grave offence will justify the application of this exclusion clause.⁹

19. Article 1F(b) requires that the crime in question was committed "outside the country of refuge...prior to his admission" to the country of asylum. This could be the country of origin, or another country. It can never be the country where the applicant seeks recognition as a refugee. Refugees who commit serious crimes within the country of refuge are not subject to the exclusion clause. They are subject to that country's criminal law process and to Articles 32 and 33(2) of the 1951 Convention, in the case of particularly serious crimes. While Article 1F(b) offers no guidance as to the role of expiation, practice has been to interpret it as applying chiefly to fugitives from justice, and not to those who have already served their sentences, unless they are regarded as continuing to constitute a menace to a new community

D. Acts contrary to the purposes and principles of the United Nations - Article 1F(c)

20. Under this Article, persons "guilty of acts contrary to the purposes and principles of the United Nations" are excludable.¹⁰ Given the fact that the United Nations Charter is addressed primarily to States members and to the Organization itself, it is suggested that, by their nature, these purposes and principles can only be violated by persons who have been closely linked with the highest authorities in a State or State-like entity. In one application of Article 1F(c), a former president was properly excluded from refugee status for his role in extreme human rights violations during his presidency. The remarks of some delegates at the Conference of Plenipotentiaries drafting the 1951 Convention indicate that this Article reflects the notion that persecutors themselves should not be protected as refugees. At the same time, concern was also expressed that the vagueness of the provision might be open to abuse.

III. Challenges in the Application of Exclusion Clauses

21. In a climate of numerous challenges to asylum, exclusion clauses should not become another avenue by which deserving cases are denied access to international protection. To minimize the possibilities of misuse, the application of exclusion clauses must always be attended by fair procedures, with clear rules governing their usage.

22. Circumstances of mass influx present particular dilemmas in this area. Individual status determination for all asylum-seekers may be physically impossible, yet the award of prima facie refugee status means, in some situations, that the persecutors may receive a measure of international protection along with the victims of persecution. During mass arrivals, the fundamental humanitarian imperative of preserving life dictates that asylum and material assistance initially take precedence over the need to identify persons undeserving of refugee status. It is crucial, however, that the process of considering the excludability of individuals begin as soon as possible. Refugee status may be withdrawn if facts justifying an individual's exclusion subsequently come to light.

23. The flight of nearly two million Rwandan refugees in 1994 illustrated the extreme difficulties of assessing excludability in situations of mass influx. From the outset, it was common knowledge that the influx included senior officers of the previous Rwandan Government and army, members of the Interhamwe militias and their civilian supporters, who had collaborated or participated in crimes against humanity. The State concerned is responsible for disarming combatants entering neutral territory, and for ensuring the civilian character of refugee camps. It is clear that assessments of the applicability of the exclusion clauses would have been greatly facilitated if, in accordance with international and humanitarian law, armed elements and their command structures had been physically separated upon arrival. The opportunity to effect this detachment was greatest at the outset of the influx, when the suspect elements had yet to consolidate themselves within the camps. Over time, the absence of an enforcement capacity rendered separation and the apprehension of suspects more difficult.

24. There is a need for the international community to regard the exclusively civilian character of refugee camps and principles of exclusion as imperatives which can and must be simultaneously pursued with the objectives of humanitarian assistance. One lesson of the Rwandan refugee crisis is that these vital elements should be inseparable, particularly in situations of mass influx.

IV. Conclusion

25. The exclusion clauses help maintain the integrity of the institution of asylum, by not according the rights and benefits attached to the possession of refugee status to persons bearing the taint of grave rights violations or serious criminal conduct. Clearly, it is desirable that there be consistency in the interpretation and application of exclusion clauses, in a climate of cooperation between States and UNHCR. Exclusion clauses form part of the definition of who has the right to enjoy asylum. For this reason, the principles governing their application include safeguards which minimize the possibility of abuse of refugees' and asylum-seekers' rights, and which seek to reinforce the obligation of non-refoulement. The fundamental core of these principles is that the international interests served by exclusion clauses may not be pursued at the expense of the rights of genuine refugees, or at the cost of diminishing the basic precepts of international protection.

1 It is important to note that there are other exclusion clauses. Articles 1D and 1E of the 1951 Convention also exclude persons already receiving United Nations assistance, and persons not considered to be in need of international protection (i.e. those who have access to national or other protection). These categories are beyond the scope of this document, as are the exclusion clauses in the UNHCR Statute and the 1969 OAU Convention. In all cases, the listing of exclusion clauses in the international instruments is exhaustive. A detailed, internal analysis of the application of these exclusion clauses was produced by UNHCR in late 1996 (Note on the Applicability of the Exclusion Clauses, UNHCR/IOM/83/96-FOM/93/96 of 2 December 1996); copies can be obtained on request from the Division of International Protection.

2 Article 3(1)."No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

3 Article 22(8)."In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions."

4 Others include: the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention); the four 1949 Geneva Conventions for the Protection of Victims of War; the 1973 Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity (General Assembly resolution 3074 (XXVIII), 3 Dec.1973), the 1977 Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Armed Conflicts (Additional Protocol I); the 1984 Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (the Convention against Torture).

5 See General Assembly resolution 3312 (XXIX) of 1974; and also ILC Draft Code, Article 15.

6 "...[A]cts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within this group; (e) Forcibly transferring children of the group to another group."

7 A "moral choice" is available only where an individual can extricate himself or herself from the criminal situation without grave danger to his or her life or that of family members.

8 For example, the Constitution of the International Refugee Organisation (IRO) specified that grounds for refugee protection were "persecution, or fear...of persecution because of race, religion, nationality or political opinions, provided these opinions are not in conflict with the principles of the United Nations, as laid down in the Preamble of the Charter of the United Nations."Annex 1, Section C(1)(a), IRO Constitution, 1946.

9 Where the balance between the seriousness of the offence and the level of persecution feared is in favour of non-exclusion, the State granting asylum may assume jurisdiction over the offence.

10 Preamble, and Articles 1 and 2 of the Charter of the United Nations. The purposes of the United Nations (United Nations Charter, Article 1) are "to maintain international peace and security ... to develop friendly relations among nations ... to achieve international co-operation in solving problems...and in promoting respect for human rights", and to serve as a centre for harmonizing the actions of nations. The principles of the United Nations (United Nations Charter Article 2) are sovereign equality of all member States; good faith fulfilment of all Charter obligations, peaceful settlement of disputes; refraining from the threat or the use of force against the territorial integrity or political independence of any State or in a manner inconsistent with the purposes of the United Nations; assistance to the United Nations in actions undertaken in accordance with the Charter; the withholding of assistance to any State against which the United Nations is taking preventive or enforcement action; ensuring that members act in accordance with the principles of the United Nations; and refraining from intervention in the domestic jurisdiction of states.