Article 1F(a) of the Refugee Convention: A Critique

Introduction

The United Nations Convention Relating to the Status of Refugees 1951 (Refugee Convention) is the main international legal instrument pertaining to international refugee rights. The document contains the various rights and privileges of refugees and attempts to regulate the relationship between an asylum seeker and the asylum granting state. Although generally successful, some aspects of the Convention have posed problems in the political context of the last three decades. One such aspect is the exclusion clauses given in Article 1 F of the Convention, reproduced below:¹Article 1 F, Convention relating to the status of Refugees, 1951, available at <https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees> accessed 4th Feburary 2023.

F. 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.

Article 1F categorises those persons who may be excluded from refugee status under the Convention. According to the Guidelines of the United Nations High Commission for Refugees (UNHCR), the object of this Article was to exclude individuals who have committed grave violations of international law which would consequently disentitle them from protection under a State’s refugee policies. For this essay, I will focus on clause (a) of this Article.

Article 1 F (a) denies refugee status for an individual ‘with respect to whom there are serious reasons for considering that he has committed a crime against peace,  war crimes or a crime against humanity’.²Ibid. The intent of the Article was to prevent the abuse of the Convention by guilty individuals to evade prosecution for their actions by taking refuge in other countries.³UNHCR, Handbook on Procedure and Criteria for Determining Refugee Status under the 1951 Convention, available at <https://www.unhcr.org/4d93528a9.pdf> accessed 4th February 2023. It also serves to uphold the integrity of the international refugee regime by restricting protection to those who deserve it, having left their countries fearing violence and persecution related to their identity. However, the Article has set a very low standard of evaluation for the denial of refugee status: “serious reasons for considering” which allows states to interpret it broadly. This gives states a range of options and legal covers to safely pursue a practice of denying refugee status.

Article 1 F (a) of the Refugee Convention

Article 1F(a) states that an individual can be denied refugee status if there are “serious reasons for considering” that the person has committed “war crimes, crimes against humanity, or crimes against peace as defined in international instruments”. International instruments relevant to determine the meaning of the terms employed by the Article include 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the four 1949 Geneva Conventions for the Protection of Victims of War and the two 1977 Additional Protocols, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the 1945 Charter of the International Military Tribunal (the London Charter), and most recently the 1998 Statute of the International Criminal Court which entered into force on 1 July 2002. This paper will use the most recent instrument, The Rome Statute for the International Criminal Court, for explaining the meaning of the mentioned terms.⁴UNHCR, Handbook on Procedure and Criteria for Determining Refugee Status under the 1951 Convention, available at <https://www.unhcr.org/4d93528a9.pdf> accessed 4th February 2023

The Intent of the Article 1F(a)

The UNHCR’s Guidelines⁵UNHCR Guidelines on International Protection No. 5 on the Application of the Exclusion Clauses: Article 1 F of the Refugee Convention, para 2 expressly state the purpose and intent of the Article.⁶Guidelines on International Protection No. 5 on the Application of the Exclusion Clauses, available at <https://www.unhcr.org/en-us/publications/legal/3f7d48514/guidelines-international-protection-5-application-exclusion-clauses-article.html> accessed January 11, 2023 According to the Guidelines, the object of the Article is to prevent the misuse of the protections of a refugee by individuals who have committed grave violations of international law to evade prosecution. The same paragraph argues that these exclusion clauses must be  applied with “great caution and only after a full assessment of the individual circumstances of the case”.⁷Ibid. In other words, these exclusion clauses must always be interpreted in a restrictive manner.⁸Ibid.

Furthermore, the offences listed in the Article are of a grave nature. The Rome Statute establishes a high standard of proof for these crimes,⁹Rome Statute of the International Criminal Court, available at  ”<https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf> accessed January 11, 2023. requiring a determination of the accused’s knowledge of the circumstances of the existence of an armed conflict. In order to prove criminal liability, the tribunal must establish the mens rea, or the intention of committing the crimes listed in Article 7, 8, and 8bis.¹⁰“Rome Statute of the International Criminal Court”, available at <https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf>  accessed January 11, 2023. The high standards of proof reflect the consensus of the international community over the fact that crimes against humanity, war crimes, or crimes against peace are serious violations of the law of war.

This is a necessary control mechanism on the granting of refugee status, as those who have violated the Rome Statute may abscond and seek refuge in other countries to evade prosecution; claiming refugee status would mandate the host State protect them from extradition and universal criminal jurisdiction. It also protects refugee-hosting States from accepting people who may put their own citizens at risk of such serious violations of international humanitarian law (IHL).

“Serious Reasons for considering”

Interpretation

Article 1F requires a determination on whether there are “serious reasons for considering” an individual has committed any of the crimes listed. The Handbook on Procedure and Criteria for Determining Refugee Status under the Convention explains that “serious reasons for considering” is a standard where “formal proof of previous penal prosecution is not required”.¹¹UNHCR, Handbook on Procedure and Criteria for Determining Refugee Status under the 1951 Convention, available at <https://www.unhcr.org/4d93528a9.pdf> accessed 4th February 2023. As per the interpretation of the Article by the office of the UN High Commissioner, the exact degree of proof necessary to reasonably support a finding under this standard is difficult to explain.¹²UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, available at <https://www.refworld.org/docid/3b20a3914.html> accessed January 11, 2023. However, the phrasing of the provision indicates that the standard of proof required to determine ‘serious reasons for considering’ is less than that required for conviction.

The phrase ‘serious reasons’ was interpreted in Al-Sirri v Secretary of State for the Home Department, United Kingdom.¹³[2012] UKSC 54 The UK Supreme Court stipulated the following interpretive guidance:

1. “Serious reasons” is stronger than “reasonable grounds”.
2. The evidence from which those reasons are derived must be “clear and credible” or “strong”.
3. “Considering” is stronger than “suspecting”. In our view it is also stronger than “believing”. It requires the considered judgment of the decision-maker.
4. The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law.
5. It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention (and the Directive) in the particular case.

This interpretation indicates that a decision-maker must be satisfied on a balance of probabilities about a person’s involvement in the crimes listed under the Article 1F(a). However, this decision must be informed by strong clear and credible evidence that indicates serious reasons to deny refugee status, as held by the Canadian Supreme Court in Mugesera v Canada.¹⁴Mugesera v. Canada (Minister of Citizenship and Immigration) 2005 SCC 40, paras 114-117.

Application in Case Law

Mugusera v Canada

Mugesera is a leading judgement on the application of Article 1F(a). In this case, Leon Mugesera, a politician in Rwanda, had given an inflammatory public speech in Rwanda which incited the Rwandan genocide. He fled to Canada seeking refugee status to escape an arrest warrant on charges of incitement to murder. However, the Canadian Supreme Court held that there was sufficient evidence affirming Mugesera’s incitement of murder, genocide and hatred, constituting a crime against humanity. Because Mugesera was a direct perpetrator in instigating these activities, he was denied refugee protection and was consequently deported.

Ezokola v Canada

In Ezokola, the Canadian Supreme Court further elaborated on the principles of criminal responsibility in the crimes listed under Article 1F(a). Ezokola was a member of the Congolese government, working in various ministries and departments, as well as representing the DRC at the UN. He resigned in 2008 and fled to Canada, claiming that he no longer wished to work for a government he considered to be ‘corrupt, antidemocratic and violent’.¹⁵Para 14 He also had links to President Kabila’s opponent, and was harassed and intimidated for his connections. The Canadian Supreme Court ruled on the notion of complicity:

In sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group’s criminal purpose. At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group.¹⁶Para 68

Thus, in order to be disqualified under Article 1F(a), a person must knowingly contribute significantly to the crime or criminal purpose of the group in question. The determination of criminal responsibility requires an active participation in the commission of the criminal activities of the group; mere knowledge or acquiescence is not sufficient to hold one responsible.

R (JS) (Sri Lanka) v Secretary of State for the Home Department

This case concerned a 28 year old Sri Lankan Tamil who was a member of the Liberation Tigers of Tamil Eelam (LTTE), a  militant group in Sri Lanka. The respondent had joined the organisation when he was 10 years old, and continued to be a part of the LTTE after his 18th birthday. He was engaged in military operations from the age of 16 to 2006, after which he decided to leave the organisation and claim asylum in the UK. In this case, it was held that because the organisation was not ‘predominantly terrorist in character’, his voluntary membership in the organisation cannot amount to personal and knowing participation, or at least acquiescence amounting to complicity, in the crimes in question.¹⁷Para 27

Furthermore, the Supreme Court distinguished criminal liability under international criminal law and under domestic law. Under Article 30 of the Rome Statute, if a person is aware that, in the ordinary course of events, a particular consequence will follow from his actions, he is said to have acted with knowledge and intent.¹⁸Para 35 However, in this case, it could not be said that the respondent had voluntarily contributed to the LTTE’s ability to pursue the purpose of committing war crimes, with the knowledge that his participation would further that purpose. Thus, his disqualification from refugee protection was overturned on appeal.

Despite the interpretive guidance on Article 1F, the application of this line of interpretation has been inconsistent. Individuals have been denied refugee status due to their mere association with organisations suspected for terrorist activities.¹⁹James Sloan, ‘The Application of Article 1F of the 1951 Convention in Canada and the United States’ 12 IJRL 233 (2000). For example, in one case, the claimant was found to have links with the Muttahida Qaumi Movement (MQM) in Pakistan.²⁰Ibid. While the MQM was notorious for committing atrocities in Karachi including murder, killing and abduction for ransom, this was not in the context of or in relation to an international armed conflict, and thus could not be considered a war crime under Article 1F(a).²¹Ibid. Despite this, RPD concluded that since the claimant was in full support of MQM’s ideology, he had knowledge of the crimes they were committing and those crimes constituted war crimes.²²Ibid. Thus, he was denied refugee status in Canada.

This indicates the potential for departure from established precedent in cases involving Article 1F(a) of the Refugee Convention. When determining criminal responsibility for the purposes of Article 1F(a), a decision-maker must engage with the individual factual circumstances of each case to determine the role played by the applicant in the commission of either crimes against peace, war crimes, or crimes against humanity. A denial of refugee protection must only be ordered in limited circumstances where the decision-maker is satisfied with the justification to do so, as the aim of the Refugee Convention is to provide protection to those fleeing persecution and violence.

Conclusion

Article 1F(a) of the Refugee Convention gives decision-makers the ability to deny refugee protection to those who have committed crimes against peace, war crimes or crimes against humanity. This allows States to restrict refugee protection against those who may have participated in activities that created refugees themselves. The phrasing of Article 1F, however, provides little guidance on what constitute ‘serious grounds’ to believe that a person may have committed the crimes listed. Nevertheless, the jurisprudence under this Article has evolved considerably to demarcate the level of involvement in the commission of crimes necessary for the denial of protection. It is up to decision-makers to ensure a consistent conformity with the jurisprudence to maintain the integrity of the specific Article in conjunction with the object and purpose of the Refugee Convention.