'The Exclusion Clause' and the Intersection of International Criminal Law and the Refugee Convention

AuthorSarah Creedon
PositionBCL (University College Cork), LL.M (Irish Centre for Human Rights, NUI Galway), PhD Candidate (Irish Centre for Human Rights, NUI Galway)
Pages84-109
© Sarah Creedon and Dublin University Law Society
‘THE EXCLUSION CLAUSE AND THE
INTERSECTION OF INTERNATIONAL CRIMINAL
LAW AND THE REFUGEE CONVENTION
SARAH CREEDON
Introduction
1
exists to protect
individuals who are unable or unwilling to return to their home states due to
a well-founded fear of persecution, on specified grounds.
2
However, this
protection does not extend to all who meet this criteria; an exception exists
for those who have committed acts so egregious that they are rendered
undeserving of refugee status. These comprise crimes against peace, war
crimes, and crimes against humanity, serious non-political crimes, and acts
contrary to the United Nations. For the first three, conducting an assessment
as to this exclusion involves recourse to international criminal law. The
transfer of law from an international arena to refugee status determinations
on a domestic level, where multi-State party resources and expertise are not
present, yields a number of difficulties. This article examines this
intersection of international criminal law and the Refugee Convention, and
the challenges that may arise.
Section 1 of this article will commence with an outline of the Refugee
Convention and, in particular, Article 1F(a), the Exclusion Clause. This
section also examines how this clause has been interpreted, in particular by
the UNHCR. Section 2 will provide a brief overview of international
criminal law as it stands today, examining its origins, purposes, and main
achievements to date. Section 3 will then introduce the Rwandan refugee
crisis as a case study, laying out the conflict, the prosecutions of the crimes
that occurred therein, and how the crisis has been managed in terms of both
mass influx cases and regular refugee status determinations (Reds).
BCL (University College Cork), LL.M (Irish Centre for Human Rights, NUI Galway), PhD
Candidate (Irish Centre for Human Rights, NUI Galway). The author would like to thank Dr.
Ciara Smyth, whose teaching sparked her initial interest in the topic, and Conor Casey for his
helpful thoughts and comments, which greatly improved this paper.
1
United Nations, Convention Relating to the Status of Refugees (United Nations, 1951), 189
United Nations Treaty Series, at 137 [hereinafter the Refugee Convention].
2
Ibid., at Art. 1A.
85 Trinity College Law Review [vol 18
Section 4 will provide analysis in terms of different issues which have
arisen. Section 5 of the article will conclude with some observations and
thoughts as to how best to address the situation as it currently exists.
I. The ‘Exclusion Clause’
Ingrained in the very notion of state sovereignty is the right of the state to
admit and expel individuals from its territorial borders. However, the
Refugee Convention, to which 145 states are parties,
3
imposes a limit on
that right, in requiring states to provide asylum to individuals in need
thereof, on specified grounds. However, Article 1F states that the
Convention shall not apply to an individual if there are serious reasons to
believe 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, [or]
(c) he has been guilty of acts contrary to the purposes and principles
of the United Nations.
4
This provision has its genesis in the context of a post-World War II society,
where the signatory states felt that those who had committed gross atrocities
should not be given the protection of the Refugee Convention.
5
The travaux
préparatoires
6
highlight such fear, indicating that the aims of the clause are
to protect against abuse of the system by the undeserving, and to combat
impunity for egregious crimes committed.
7
James Hathaway states that the
3
United Nations Treaty Collections Database, Convention Relating to the Status of Refugees
hapter=5&Temp=mtdsg2&lang=en> (visited 27 January 2015).
4
The Refugee Convention, note 1, at Art. 1F.
5
UN High Commissioner for Refugees [hereinafter UNHCR], Handbook and Guidelines on
Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the
1967 Protocol Relating to the Status of Refugees (UNHCR, 2011), at paras. 147-148.
6
The travaux préparatoires are the official records of the negotiations regarding the Refugee
Convention. See UNHCR, The Refugee Convention, 1951: The Travaux préparatoires
analysed with a Commentary by Dr. Paul Weis
(visited 1 February 2015).
7
Geoff Gilbert, “Current Issues in the Application of the Exclusion Clauses” in Feller, Türk,
and Nicholson eds., Refugee Protection in International Law: UNHCR’s Global Consultations
on International Protection (Cambridge University Press, 2003), at 427-428.
2015] Exclusion Clause in the Refugee Convention 86
exclusion clause is rooted in both a commitment to the promotion of an
international morality and a pragmatic recognition that states are unlikely to
agree to be bound by a regime which requires them to protect undesirable
refugees.
8
This clause was never utilised until events during the 1990s saw
vast amounts of refugees coming from conflict areas in which gross human
rights violations had been perpetrated. Consequently, it became necessary
to differentiate between victims and perpetrators, thus, Article 1F came to
the fore.
9
This article will limit its focus to Article 1F(a), insofar as it
intersects with international criminal law.
The Office of the United Nations High Commissioner for Refugees
has issued guidelines
10
as well as a background note,
11
in order to guide the
interpretation of Article 1F. As the clause itself is quite brief, these
documents are very useful in terms of interpretation. The UNHCR provides
that Article 1F must be interpreted restrictively and with great caution.
12
Regarding the serious reasons provision, clear and credible evidence
and a substantial suspicion of guilt are required.
13
Although at the time
the only international instrument at the disposal of the drafters was the
Charter of the International Military Tribunal (IMT), the UNHCR states
that amongst other instruments which may offer guidance are the
Genocide Convention, the Geneva Conventions and its Protocols, the
Statutes of the ad hoc Tribunals for the former Yugoslavia and Rwanda, and
the Rome Statute.
14
In examining such instruments, the UNHCR defines the separate
crimes. It finds that a crime against peace involves the planning,
preparation, initiation or waging of a war of aggression, or in violation of
international treaties.
15
It states that war crimes involve breaches of
international humanitarian law, which may be committed in national or
international armed conflict, and lists some acts which may be covered.
16
8
James Hathaway, The Law of Refugee Status (Lexis Law Publishing, 1991), at 214.
9
Peter van Krieken ed., Refugee Law in Context: The Exclusion Clause (T.M.C. Asser Press,
1999), Abstract, at VII.
10
UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion
Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, UN Doc.
HCR/GIP/03/05 (UNHCR, 2003) [hereinafter UNHCR Guidelines].
11
UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the
(visited 27 January 2015).
12
Ibid., at para. 4.
13
Ibid., at paras. 107-108.
14
UNHCR Guidelines, note 10, at para. 10.
15
Ibid., at para. 11.
16
Ibid., at para. 12.
87 Trinity College Law Review [vol 18
Regarding crimes against humanity, the UNHCR states that acts which meet
the threshold, including genocide, murder, rape, and torture, must be carried
out as part of a systematic and widespread attack directed against the
civilian population, and may occur in times of peace.
17
The UNHCR
provides for individual responsibility; an individual must have made a
substantial contribution to the crime with knowledge that this contribution
would facilitate the criminal conduct.
18
Physical perpetration of the act is
not necessary; liability may be found in the instigating, aiding and abetting
and participating in a Joint Criminal Enterprise.
19
II. An Overview of International Criminal Law
Given that the instruments regarding international crimes are referenced in
Article 1F(a) for definition purposes, it is necessary to compare the
definitions of the crimes within the Refugee Convention (and its interpreting
Guidelines) and those found in international criminal law itself, in order to
determine the thoroughness of the former. Due to its high percentage of state
ratification,
20
contemporaneousness, detailed provisions, and relative
independence from the UN,
21
the Rome Statute 1998 which established the
International Criminal Court, will be used throughout this article as being
most representative of international criminal law as it stands today.
The provisions of the Rome Statute that define the scope of
international crimes appear relatively similar
22
to those enumerated in the
Convention and associated guidelines, notwithstanding a significantly
higher level of detail in the former. However, there are several noteworthy
differences between the texts. The first concerns crimes against peace in
the Refugee Convention; which is referred to as a crime of aggression
23
in the Rome Statute, a crime over which the International Criminal Court
has jurisdiction.
24
Although prosecuted through the IMT in Nuremberg,
17
Ibid., at para. 13.
18
Ibid., at para. 18.
19
Ibid.
20
122 state parties at the time of writing.
21
Insofar as it is not established by UN Resolutions, as the ad hoc tribunals were.
22
Joseph Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal
Background in International and Domestic Law (Republic of Letters Publishing BV, 2012), at
130-142. For a more detailed analysis, see William Schabas, An Introduction to the
International Criminal Court (4th ed., Cambridge University Press, 2011), at Chapter 3.
23
Ibid., at 130.
24
Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9; 37
International Legal Materials 1002 (1998), Art. 5(d).
2015] Exclusion Clause in the Refugee Convention 88
there has been little international consensus as to the nature of this crime
since. The crime was not defined by the Rome Statute until 2010,
25
and may
not be prosecuted until January 2017.
26
Therefore, although its definition is
similar to that within the Guidelines, the crime of aggression still has little
clarity within international criminal law. Another marked difference when
comparing the provisions is with regard to the crime of genocide. Genocide
is a crime in its own right under the Rome Statute, with detailed provisions
as to what this entails,
27
but is merely contained within the list of crimes
against humanity in the Guidelines.
It would be remiss, however, to limit the discussion to that of its
statutory provisions as its jurisprudence has made a substantial contribution
to its body of law.
28
As the International Criminal Court is still in its teething
stages in terms of jurisprudence, it is instructive to turn to the work of the
ad hoc tribunals. These tribunals, known for their judicial innovation and
activism, are responsible for adding substantively to the law, far beyond the
scope of their respective statutes. Clear examples of such activism include
the International Criminal Tribunal for the Former Yugoslavia (Hereinafter
ICTY) case of Tadić, which established that war crimes may occur in
conflicts which are non-international in nature,
29
and the International
Criminal Tribunal for Rwanda which provided in Akayesu
30
that rape may
be a genocidal act. The significance of both findings is evidenced by their
subsequent inclusion within the provisions of the Rome Statute. However,
neither the Convention nor the UNHCR refer to the possibility of
jurisprudence offering guidance on international criminal law crimes.
Although the influential role of jurisprudence could not have been foreseen
at the time of drafting of the Convention, one should note that such
jurisprudence did exist in 2003, at the time of the drafting of the Guidelines.
III. Case Study: Rwanda
Undertaking a case study of the refugee crisis that followed the Rwandan
genocide in 1994 provides a helpful framework for understanding the way
in which international criminal law intersects with the Exclusion clauses.
25
Ibid., at Article 8.
26
Ibid., at Article 15(3).
27
Ibid., at Article 6.
28
Rikhof, note 22, at 125.
29
Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, (Appeals Chamber Judgment), IT-94-1 (2 October 1995), at paras. 128-134.
30
Prosecutor v Jean Paul Akayesu, (Trial Chamber Judgment) ICTR-96- 4 -T (2 September
1998), at paras. 500-509.
89 Trinity College Law Review [vol 18
It is beyond the scope of this article to provide a thorough examination
into the causes of the genocide; however, a measure of background context
is necessary. Among the Banyarwanda in Rwanda, there are two main
ethnic groups: the Tutsis and the Hutus.
31
The distinction between the two
is largely historical and the peoples coexisted relatively peacefully, until
colonising powers issued identity documents to Rwandans and insisted on
stipulating as to whether the holder was either a Tutsi or Hutu. This caused
the difference between the two to take on an official and administrative
status, hitherto non-existent,
32
and assisted in the increase in tensions and
resentment. This tension came to a head in 1959 with the killing of 20,000
Tutsis, the exodus of 300,000, and the start of a violent civil war which
would span years.
33
This violence reached a peak in 1994, with the tragic Rwandan
genocide. Tutsis were targeted for ethnic killings across Rwanda,
orchestrated by Hutu extremists, and carried out by the Presidential Guard,
Hutu civilians, and militia groups, such as the Interahamwe.
34
Reports vary
dramatically as to the number of deaths but the general consensus is that
somewhere between 500,000 and 800,000 Rwandans were killed,
amounting to approximately three quarters of the Tutsi population, and
some Hutu moderates, who were also targeted.
35
The genocide was also
characterised by the scale of brutal sexual violence and mass rape
committed against women.
36
In July 1994, the Rwandan Patriotic Front (Hereinafter RPF), a Tutsi
militia previously based in Uganda, overthrew the Hutu Rwandan
government, marking the end of the genocide. The RPF, upon gaining
31
Banyarwanda are Hutus, Tutsis and Batwa who all speak Kinyarwanda, and who generally
live along the Rwandan border. See Organisation of African Unity, International Panel of
Eminent Personalities Report, Rwanda: The Preventable Genocide (Organisation of African
Unity, 2000), at para. 20.
32
Ibid., at para. 2.11.
33
Ibid., at para. 3.14.
34
See United States Bureau of Citizenship and Immigration Services, Rwanda: Information on
the role of the Interahamwe militia and the use of roadblocks during the 1994 Rwandan
genocide (United States Bureau of Citizenship and Immigration Services,
2001), RWA01001.OGC.
35
Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda, Ten Years Later
(Human Rights Watch, 2004).
36
With regard to sexual violence in Rwanda, see Anne-Marie de Brouwer, Supranational
Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR
(Intersentia, 2005), at 11-14; UN Commission on Human Rights, Report on the Situation of
Human Rights in Rwanda Submitted by Mr. Rene Degni-Séguí.
(visited 1 February
2015).
2015] Exclusion Clause in the Refugee Convention 90
power, proceeded to summarily kill thousands of Hutu civilians.
37
The
violence eventually settled somewhat, and the RPF commenced the
formidable task of rebuilding the state and restoring order. Some of the
difficulties encountered in this task will now be outlined, in terms of
assessing what could face refugees who are excluded and returned to
Rwanda.
IV. Prosecutions
The issue of Justice was first dealt with domestically. The gravity and sheer
scale of the crimes committed represented an overwhelming task,
exacerbated by a lack of resources and the fact that the Rwandan judiciary
was effectively decimated.
38
In 1996, domestic trials commenced.
39
However, reports soon emerged detailing disappearances, extrajudicial
killings, arbitrary arrests, and a lack of fair trial rights for those accused.
40
Furthermore, the system could not cope with the massive caseload; with a
prison population of 130,000 in 1998, and a mere 1,292 persons having been
tried. Moreover, prisoners awaiting sentence soon began to die due to
overcrowding problems.
41
A complementary system known as gacaca was introduced, which
was a more customary, community-based form of resolution, whereby
community-elected judges presided over assemblies.
42
These courts heard
almost 2 million cases. The 2011 Human Rights Watch report, Law and
Reality: Progress in Judicial Reform in Rwanda, praised the expediency of
the courts in dealing with the vast case load and the community
representation. However, it was also highly critical of the lack of fairness
within the trial system; there was limited access to defence, as well as
allegations of witness intimidation and corruption and fears of insufficient
judicial training and competence.
43
After the closure of the gacaca courts,
37
Human Rights Watch, Rwanda, Justice after Genocide: 20 Years On (Human Rights Watch,
2014).
38
Amnesty International, Rwanda: Crying Out for Justice (Amnesty International, 1995), at 2.
39
Based on the Organic law 8/96 of 30 August 1996 on the Organization of the Prosecution of
Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed since 1
October 1990. See Government of Rwanda, Official Journal 17 (Government of Rwanda,
1996).
40
Amnesty International, note 38, at 3.
41
Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda (Human
Rights Watch, 2008), at 16-17.
42
Organic Law of June 19, 2004, Establishing the Organisation, Competence and Functioning
of Gacaca Courts, Arts. 35-37.
43
Human Rights Watch, note 37, at 17-19
91 Trinity College Law Review [vol 18
genocide-related crimes continue to be prosecuted in the conventional court
system. Human Rights Watch, however, notes a residual failure to respect
due process, the intimidation of witnesses and judges, and a lack of judicial
training within these trials today, although it details a marked improvement
with regard to due process and judicial training within the last 10 years.
44
The International Criminal Tribunal for Rwanda (ICTR) provided a
second forum for accountability, with jurisdiction over genocide and serious
violations of international law committed in Rwanda and its neighbouring
states in 1994.
45
The Tribunal has, to date, tried 77 accused out of 93
indictments. Of these, 61 were sentenced, and 14 were acquitted.
46
The
Tribunal, with a mere 7 ongoing proceedings remaining,
47
has overall been
regarded as a success, due to its convictions of prominent Rwandan leaders
for their part in the genocide, such as former Chief of Staff of the Army,
General Augustin Bizimungu.
48
However, Rwandan NGOs in particular
have criticised the Tribunal and its work due to the fact that it has indicted
a relatively small number of individuals, encountered delays, raised witness
intimidation issues, and yielded high costs.
49
Furthermore, despite having
the jurisdictional capabilities to do so, the Tribunal has not indicted a single
RPF member for any of the crimes committed against Hutus after the
genocide. The reason for this is arguably due to tensions which arose
between the Rwandan government and the Tribunal when it appeared that
the RPF was being investigated, when the government refused to cooperate
with the Tribunal with regard to access to evidence and witnesses.
V. Refugee Status Determinations
A. Mass Influx in Neighbouring States
The conflict in Rwanda gave rise to a massive refugee crisis. In 1994, with
the end of the genocide and the overthrow of the Rwandan government by
the RPF, the Hutu population feared retaliation for the genocide by a now-
44
Human Rights Watch, note 37, at 6.
45
Statute for the International Criminal Tribunal for Rwanda, Security Council Res. 955, UN
Doc. S/RES/955 (1994), Article 1.
46
United Nations International Criminal Tribunal for Rwanda, Key Figures of ICTR Cases
141028_EN.pdf> (visited 27 January 2015).
47
Ibid.
48
Prosecutor v Augustin Bizimungo (Appeals Chamber Judgment), ICTR-00-56 (May 17,
2011).
49
Human Rights Watch, note 35.
2015] Exclusion Clause in the Refugee Convention 92
ruling Tutsi government, and over 2 million fled to neighbouring states. The
UNHCR estimated that in August 1994, there were approximately 1.2
million Rwandan refugees in Zaire, 580,000 in Tanganyika, 270,000 in
Burundi, and 10,000 in Uganda.
50
Refugee camps were established to deal
with the crisis.
51
Other than the obvious logistical hurdles faced by the host states in
coping with influxes of such numbers, other, somewhat more novel,
challenges soon emerged when it became evident that some of those seeking
assistance were arriving still armed. The influx of refugees also included
Hutu leaders capable of exerting control over the rest of the population
within the camps, to the extent that William ONeill describes huge numbers
of the refugees as hostages of the leaders.
52
In the camps in Zaire, there was
such a large presence of former Army officials and Interahamwe, known
collectively in the camps as the génocidaires,
53
that the tents came to be
organised by military rank, as though the camps were established to house
a government in exile, rather than people fleeing persecution.
54
These
génocidaires exerted control over the camps by taking control of food
distribution, and using threats and physical intimidation against the civilian
population to keep them within the camps.
55
Thus, the camps were
composed of a mix of perpetrators of genocide-related acts and people in
genuine need of assistance, with the former holding an inordinate amount
of control over the latter. In terms of security concerns,
56
it was therefore
clear that discrimination between victim and perpetrator was required.
Performing exclusion assessments in such challenging circumstances
represents a formidable task for decision-makers. The Guidelines
50
UNHCR, Special Unit for Rwanda and Burundi, Information Meeting in Geneva (UNHCR
1994).
51
Kristen Wagner, “UNHCR’s Involvement in the Great Lakes Refugee Crisis” (2009) 21(1)
Pace International Law Review 367.
52
William O’Neill, Bonaventure Rutinwa and Guglielmo Verdirame, “The Great Lakes: A
Survey of the Application of the Exclusion Clauses in the Central African Republic, Kenya and
Tanzania” (2000) 12 Int'l J. Refugee. L., at 136; UNHCR, The Rwandan Genocide and its
Aftermath: State of the World’s Refugees (UNHCR, 2000), at 246.
53
Le Petit Robert defines the term ‘génocidaires’ as “[les personnes] qui participle à un
génocide.” Translated into English this means, ‘those who commit genocide,’ but in this
context, it is usually used to refer specifically to those who committed genocidal acts during
the Rwanda genocide. Le Petit Robert, 2011, at 1145.
54
UNHCR, note 50, at 247.
55
Wagner, note 51, at 368-369.
56
Such concerns became justified when attacks occurred on the camps, in attempts to avenge
the genocide. See Jennifer Bond, “Excluding Justice: The Dangerous Intersection between
Refugee Claims, Criminal Law, and ‘Guilty’ Asylum Seekers” (2012) 24(1) Int'l J. Refugee.
L., at 42-43.
93 Trinity College Law Review [vol 18
themselves recognise this reality and note that it may cause operational and
practical difficulties, in practice.
57
Notwithstanding this acknowledgement,
the Guidelines stipulate clearly that exclusion screenings should
nevertheless occur in such situations, although those being screened should
receive protection and assistance until the process is complete, subject to
the separation of armed elements from the civilian refugee population.
58
In her consideration of this provision in relation to the Rwandan crisis,
Kristen Wagner states that the people who presented themselves in Zaire for
assistance were all likely in genuine need of such assistance, and that this
assistance should indeed have been given priority over the screening
process. However Wagner notes that this does not mean that the UNHCR
should assume that all seeking assistance were, in fact, entitled to such
assistance legally, as this position would negate its duty vis-à-vis the
exclusion clause.
59
However, the Rwandan refugee crisis predates the UNHCR
Guidelines, which may have assisted the decision-makers. Rather than
considering the application of the exclusion clause, the UNHCR, instead,
opted to utilise group status recognition within the refugee camps.
60
They
did so by relying on Article 1(2) of the Organisation of African Union
(OAU) Convention, which grants refugee status to those who have fled their
home states due to events seriously affecting public order.
61
The UNHCR
suspected that Hutu leaders within the camps had unquestionably
instigated, or directly participated in the genocide, and were thus
potentially excludable, from as far back as May 1994.
62
However, it found
that the serious security constraints of the camps, as detailed above,
rendered exclusion impossible.
63
Reports by camp authorities at the time
detail the impossibility for the UNHCR of correctly identifying leaders who
would fall under the exclusion clause, as well as the dangers involved in
attempting to do so, considering the militarised nature of the camps, and the
control of the Hutu leaders over the refugees. An example of this control
57
UNHCR Guidelines, note 10, at para. 30.
58
Ibid.
59
Wagner, note 51, at 3.
60
UNHCR, Evaluation Report: Lessons Learned from the Rwanda and Burundi Emergencies
(UNHCR, 1996), at para. 36.
61
Organisation of African Unity, Convention Governing the Specific Aspects of Refugee
Problems in Africa (Organisation of African Unity, 1969), 1001 United Nations Treaty Series
45, Article 1(2).
62
UNHCR, note 10, at para. 36. A UNHCR Representative in Tanzania alerted Headquarters
to the presence of suspected perpetrators of the genocide.
63
Ibid.
2015] Exclusion Clause in the Refugee Convention 94
can be seen in an attempt to arrest an alleged former bourgmestre
64
in a
camp in Tanganyika. The arrest had to be abandoned after the refugees
rioted as a result.
65
As well as security issues, other reasons would have rendered it
difficult for exclusion screenings to be conducted. Dennis McNamara,
Director of the International Protection Division of the UNHCR, stated that
as well as being dangerous, assessing whether a refugee fell under the
exclusion clause in this context was a highly difficult, complex and
resource intensive exercise.
66
Several factors support such a contention.
First, the violence witnessed during the genocide and its aftermath had been
so egregious and widespread that refugees, when asked about their
experiences in order to determine their status, often displayed signs of
severe trauma, exacerbated by safety issues experienced by many within the
camps themselves. This had a significant impact on fact-finding, as well as
on the claimants credibility,
67
and rendered it difficult to conduct
assessments. Furthermore, the states which held the refugee camps typically
had weak legal systems and insufficient resources to cope with the demand
of the high numbers of assessments which would have to be made, or with
providing for those it might deem excludable.
68
However, the UNHCR, in an Evaluation Report in 1996, questioned
whether its failure to conduct excludability assessments by allowing for
group recognition had been a mistake. It acknowledged that allowing Hutu
leaders to be processed as part of a group without any sort of screening
process had had adverse long-term repercussions for peace in the region,
stating:
The entrenchment of an extremist leadership has been strengthened
[] a peaceful solution to the problem appears more remote than
ever. There must be a lesson to be learned from this. Indeed, a number
of fundamental questions, which are beyond the scope of this report,
remain to be answered. Did the UNHCR in fact have a choice? Should
the Rwandan refugees have been granted group status recognition
64
Bourgmestre means Mayor.
65
UNHCR, note 10, at para. 40.
66
Dennis McNamara, Statement to the House Committee on International Relations, Sub-
Committee on International Operations and Human Rights
(visited 1 February 2015).
67
Bond, note 56, at 43.
68
O’Neill, note 52, at 135.
95 Trinity College Law Review [vol 18
despite the enormity of the genocide which had been set in motion by
their leaders?
69
It is notable that the UNHCR did, in fact, learn from its experiences in the
1990s. Preliminary screening assessments have been used in more recent
days even with regard to Rwandan refugees, as is highlighted within the
report of the findings of the Lawyers Committee for Human Rights, who
observed screenings within the Great Lakes Region for three years.
70
Furthermore, the UNHCR Guidelines now exist to assist decision-makers,
as well as more specific guidelines on situations of mass influx.
71
It thus
seems more likely that were that situation to happen today, exclusion
assessments would be undertaken. When assessing the actions of the
UNHCR at the time, one would be wise to acknowledge the benefit of
hindsight; the Guidelines did not exist then and the situation was
unprecedented.
B. Refugee Status Determinations in Non-Neighbouring States
The vast majority of people who fled Rwanda did so to neighbouring states.
However many also sought asylum further afield, where UNHCR group
status recognition did not apply. This article will now discuss regular
Refugee Status Determinations conducted on Rwandans who fled to such
states. Such determinations were conducted with less obvious initial
difficulties than those faced in neighbouring states of Rwanda, insofar as
comparatively few Rwandan refugees would have been able to travel great
distances to claim asylum, thus presenting less of a burden. Furthermore,
these states are often in a better position financially. However, such
assessments do, nevertheless, present difficulties of their own. It should be
acknowledged from the outset, however, that it is not possible to access
detailed information on all exclusion assessments conducted within
individual decisions, as detailed written decisions are often not available
unless a case makes it to a higher court on appeal, or for judicial review.
Furthermore, states, in such assessments rely on domestic legislation rather
than the Refugee Convention itself, although the wording may be similar. A
69
UNHCR, note 10, at para. 42.
70
Lawyers Committee for Human Rights, “Safeguarding the Rights of Refugees under the
Exclusion Clauses: Summary Findings of the Project and a Lawyers Committee for Human
Rights Perspective” (2000) 12 Int'l J. Refugee. L., at 317-345.
71
UNHCR, Guidelines on the Application in Mass Influx Situations of the Exclusion Clauses
of Article 1F of the Refugee Convention (UNHCR, 2006). <
http://www.refworld.org/docid/43f48c0b4.html> (visited 1 February 2015).
2015] Exclusion Clause in the Refugee Convention 96
selection of cases from different states will now be briefly outlined which,
it is submitted, are illustrative of issues which arise with regard to using the
Exclusion Clause for Rwandan refugees.
C. Léon Mugusera v Canada (Minister of Citizenship and Immigration)
The first application of the exclusion clause in Mugusera v Canada
72
was
relatively straightforward. In this case, the applicant had, in November
1992, as a member of an extremist Hutu party, delivered a speech to 1,000
people during a political rally to oppose the negotiation process to end the
civil war. Mugusera, it was alleged, used extremely violent rhetoric which
was later used as encouragement during the genocide, in which he implied
that the Tutsis were cockroaches
73
and should be exterminated.
74
The Court
relied on domestic legislation in the form of 1985 Immigration Act, which
provides for exclusion if, on the balance of probabilities, an individual has
perpetrated a crime of incitement to hatred, murder, or genocide, or if there
are reasonable grounds to believe that he or she has committed a crime
against humanity outside of Canada.
75
In examining these international
crimes, the court performed an initial analysis based solely on domestic
legislation and jurisprudence.
76
However, it acknowledged that the
legislation should be subject to customary law,
77
and therefore proceeded to
conduct a detailed examination of ICTY and ICTR jurisprudence.
78
It found
that its own analysis was largely in line therewith, although there were some
differences between international law and the initial assessment of the
decision-maker, for example with the incorrect assertion that a crime against
humanity could not have occurred because the speech had not been part of
a strategy.
79
It was held, overall, that in the context of the violence of the
time, and the influence of the speech on the genocide that followed,
Mugusera had incited murder, genocide, and hatred, and had committed a
crime against humanity. He was thus deemed inadmissible to Canada.
80
72
Léon Mugusera v Canada (Minister of Citizenship and Immigration) [2005] 2 SCR 100
[hereinafter Mugusera].
73
Mugusera, at para. 48.
74
Mugusera, at paras. 71-72.
75
The Immigration Act 1985, ss. 27(1)(a1)(ii); 27(1)(a3)(ii); 19(1)(j).
76
Criminal Code R.S.C 1985; Crimes against Humanity and War Crimes Act S.C. 2000.
77
Mugusera, at para. 133.
78
Mugusera, at paras. 125-175
79
Mugusera, at para. 168.
80
Mugusera, at para. 179.
97 Trinity College Law Review [vol 18
D. Dr. M v Federal Republic of Germany
A case which is possibly more illustrative of the difficulties faced by far
afield courts is the German decision of Dr. M v Federal Republic of
Germany.
81
In this case, the claimant, Dr. M, a Rwandan of Hutu ethnicity,
had entered Germany in 1989 for the purpose of pursuing an education.
Subsequent to the genocide in 1994, he became heavily involved in
Rwandan exile organisations in Germany, and due to the political
persecution which such activities could have enjoined; he became a refugee
sur place in Germany in 2000. In 2001, he became President of another Hutu
exile organisation, the Forces Démocratiques de Libération du Rwanda
(FDLR).
82
In 2006, the Federal Office for Migration and Refugees revoked
Dr. Ms refugee status on the grounds that as the President of the FDLR,
there was good reason to suspect that he had committed war crimes and
crimes against humanity, given that the FDLR, of which he was President,
had been responsible for raids, rapes and abductions in South Kivu. The
Administrative Court reversed the revocation, stating that the evidence
presented to justify it had lacked clarity and reliability.
83
The Federal
Administrative Court, on appeal, first considered the legality of refugee
status revocation for exclusionary purposes. In doing so, it examined the
exclusion clause within Germanys Asylum Procedure Act
84
in conjunction
with the obligation of the German Government to revoke refugee status
when certain conditions have ceased to exist.
The Court found that revocation can also occur when conditions arise,
rather than simply cease to exist, and subsequent to its granting, thus
essentially allowing for exclusion.
85
The Court then examined the Refugee
Convention and found that the concept of exclusion is significantly based
on the concept of unworthiness for asylum and that, furthermore, the need
to exclude persons unworthy of asylum does not depend on the date at which
they bring about the substantive reasons for exclusion under Article 1F.
86
It was therefore found that it is legal to revoke refugee status for essentially
exclusionary purposes.
81
Dr. M v Federal Republic of Germany, Judgment of the 10th Division of 31 March 2011,
(BVerwG 10 C 2.10.) [hereinafter Dr. M].
82
Dr. M, at paras. 1-2.
83
Dr. M, at para. 5.
84
Asylum Procedure Act (1993). Article 3(2) is virtually identical to Art. 1F(a) of the Refugee
Convention.
85
Referred to in 73(2)(a) Asylum Procedure Act.
86
Dr. M, at para. 22.
2015] Exclusion Clause in the Refugee Convention 98
The Court then turned its attention to the allegations of war crimes
and crimes against humanity. Despite a lack of any clear evidence of Dr.
Ms knowledge of FDLR attacks, it was found that [a]s the President and
supreme military commander, he held a high position in the organisation
He knew of the crimes that had been committed, and took no suitable
measures to prevent the acts.
87
The Court, therefore, held that Dr. M, as a
superior officer, was liable for war crimes and crimes against humanity, and
his refugee status was consequently revoked.
E. Vincent Brown v Government of Rwanda and Home Department
A case which provides an interesting contrast to the preceding two is that of
Vincent Brown.
88
This case concerns four Rwandan individuals, three of
whom were prominent Hutu bourgmestres, and all of whom were alleged to
have been involved in the massacre of Tutsis in the genocide. After the RPF
takeover all four fled to the UK and sought asylum. Here, they were arrested
and faced being extradited to face charges of genocide in Rwanda.
89
The
case therefore concerns an appeal of the extradition order and not exclusion
per se but is nonetheless instructive as it details with many of the same issues
as the above cases. The Court accepted the evidence of the implication of
all four men in the killings and genocidal acts as facts.
90
Its focus was on the
appellants claim that they would not receive a fair trial in Rwanda. Here,
the Court looked at the UK's 2003 Extradition Act
91
and the European
92
which were collectively held to provide for
fair trial rights in extradition cases within the requesting state. The Court
examined ICTR cases concerning the transfer of defendants to the Rwandan
High Court,
93
and found that in several cases, the Tribunal had refused to
transfer defendants because of the serious difficulties documented in
obtaining defence witnesses due to fears of harassment and detention.
94
87
Dr. M, at para. 32.
88
Vincent Brown and Others v The Government of Rwanda and the Secretary of State for the
Home Department [2009] EWHC 770 [hereinafter Vincent Brown].
89
Pursuant to a Memorandum of Understanding between the UK and Rwanda governments
(14 September 1996), permitted by Extradition Act 2003 s.194.
90
Vincent Brown, at para. 18.
91
The Extradition Act (2003), ss. 81; 87.
92
Fundamental Freedoms, as Amended by Protocols 11 & 14 (Council of Europe, 1950), Art. 6.
93
Considered, for example, were Prosecutor v Munyakazi (Appeals Chamber Judgment)
ICTR-97-36 R1 Ibis (8 October 2008); Prosecutor v Kanyarukiga (Appeals Chamber
Judgment) ICTR-2002-78-R11 Ibis (30 October 2008).
94
Vincent Brown, at para. 46.
99 Trinity College Law Review [vol 18
These conclusions were backed up by reports of witnesses being tortured
and even killed.
95
The Court also found that there were issues of the
competence and independence of both the judiciary
96
and Prosecutor.
97
Overall, the Court concluded that extraditing the appellants would result in
a real risk that they would suffer a flagrant denial of justice,
98
and
consequently disallowed the extradition request.
VI. Analysis of Legal Issues Arising from the Intersection
of the Exclusion Clause and International Criminal Law
This section will examine areas where difficulties have arisen in the
application of Exclusion clauses in International Criminal Law. The author
will again draw on examples from the Rwandan refugee crisis in order to
understand these points of clash.
A. The Importance of Considering Mitigating Factors
The first substantive issue concerning the intersection of international
criminal law with the Exclusion Clause that this article will analyse is
mitigating factors. Few of the crimes prosecuted internationally are
committed in a fashion comparable with most run-of-the-mill crime
committed in the average signatory State, where an individual physically
perpetrates a crime himself or herself, having intended to do so.
International criminal law exists to punish the gravest of crimes and the
guiltiest of offenders. In situations encompassing acts of violence on the
scale of the Rwandan Genocide, those deemed sufficiently culpable to
warrant indictment are not only the soldiers on the ground who physically
commit the crimes, but also military leaders and others orchestrating
violence at a strategic level, even where they have never physically caused
any harm. Hence the Rome Statute contains provisions allowing for the
condemnation of the instigation, aiding and abetting, participation with
common purpose, and the incitement of crimes, the avenue through which
most indictees are ultimately prosecuted.
99
Although legally there exists no
95
Vincent Brown, at para. 43.
96
Vincent Brown, at paras., 77-79; 97.
97
Vincent Brown, at para. 85.
98
Vincent Brown, at para. 121.
99
Rome Statute, note 24, at Article 25.
2015] Exclusion Clause in the Refugee Convention 100
formal hierarchy, courts have noted that the importance played by the
degree of participation; particularly at sentencing stage.
100
Another feature of international criminal law is that even when crimes
committed by lower-ranking soldiers are sufficiently serious to warrant
indictment, they are sometimes characterised by duress, where a soldier
commits the crime, but under threat of imminent death or serious bodily
harm against that person or another person.
101
Duress is listed within the
grounds for excluding liability in the Rome Statute.
102
However, it was held
in the leading ICTY case of Prosecutor v Erdemović,
103
duress cannot
afford a complete defence to a soldier charged with crimes involving the
taking of innocent lives.
104
It, however, found that duress could be a
mitigating factor within the sentencing process,
105
and Erdemović, although
convicted of a crime against humanity for the murder of approximately 70
people, was sentenced to five years in prison, three of which he served
before release.
It is significant to note that both of the above apply fittingly to
Rwanda, where many of the crimes were committed by ordinary people or
soldiers, at the orders of superiors or indeed under duress. This can be seen
even within the cases outlined above, where Dr. M, Mugusera, and the four
appellants in Vincent Brown were all influential Hutu men, none of whom
were accused of physically perpetrating any crimes. The role of duress in
the crimes may also be seen within the refugee camps and in the level of
control of the military leaders over the Hutu population. However, as
outlined by Jennifer Bond in examining several hypothetical situations,
despite the fact that one of these individuals might receive a relatively light
sentence in an International Criminal Tribunal for a serious crime, they
would (all other factors not being considered at this point) be excluded from
the Refugee Convention for the same crime. The Convention has no
provision that allows for mitigating factors.
Another issue which may arise regarding duress is the involvement of
child soldiers. It is estimated that between 15,000 and 20,000 children took
100
Prosecutor v Furundžija (Appeals Chamber Judgment), IT-95-17/1-A (21 July 2000), at
para. 249.
101
Rome Statute, note 24, at Article 31(d).
102
Ibid., at Article 31(d).
103
Prosecutor v Erdemović, IT-96-22, Appeals Chamber (7 October 1997) [hereinafter
Erdemović].
104
Erdemović, at para.19. Emphasis added.
105
Erdemović, at para. 12.
101 Trinity College Law Review [vol 18
part in the Rwandan genocide.
106
Rather than merely considering their age
as a mitigating factor in international criminal law, child soldiers are often
automatically excluded entirely from prosecution, by virtue of their minor
status. The Rome Statute, for example, provides that the International
Criminal Court may not try minors under the age of eighteen.
107
However,
although the UNHCR has recognised that caution should be exercised with
regard to excluding child soldiers, Article 1F applies if mens rea is present,
and no other defences exist.
108
It is therefore clear that international criminal
law takes factors such as moral culpability and age into account in a
practical sense, whereas exclusion assessments, in merely focusing on the
culpability of the criminal act, do not.
B. Inherent Logistical Challenges
The fact that exclusion assessments are performed in a state other than that
in which the alleged crimes took place brings with it logistical difficulties,
both with regard to evidence and legal analysis. In terms of evidence, the
first difficulty concerns the geographical distance between the home and
refuge states; access to information about the crimes, as well as transport of
evidence and witnesses, could easily be problematic. In Rwanda, the
inordinately high death toll and similarly high refugee traffic which
emerged from the conflict meant that many of the witnesses to acts of
violence were either dead or had fled the state.
Further difficulties in gathering evidence arise due to the fact that the
alleged crimes concerned are usually committed in a context of extreme
violence. As stated, Rwanda is particularly renowned for the brutal nature
of the massacres and high levels of sexual violence; it is estimated that
between 250,000 and 500,000 women and girls were raped during the
genocide.
109
Rape, combat exposure, torture and war, all of which were
present at high levels in Rwanda, are associated with strong levels of Post-
Traumatic Stress Disorder,
110
and a survey found that a quarter of the
106
Child Soldiers International, Child Soldiers Global Report: Rwanda
(visited 15 November 2014).
107
Rome Statute, note 24, at Article 26.
108
UNHCR Background Note, note 11; Rikhof, note 22, at 291.
109
UN Commission on Human Rights, note 36, at para. 16. See Human Rights Watch,
Shattered Lives: Sexual Violence during the Rwandan Genocide and Its Aftermath (Human
Rights Watch, 1996).
110
Julian Gojer and Adam Ellis, New Issues in Refugee Research: Post-Traumatic Stress
Disorder and the Refugee Determination Process in Canada: Starting the Discourse <
http://www.unhcr.org/53356b349.html> (visited 1 February 2015).
2015] Exclusion Clause in the Refugee Convention 102
general population of Rwanda would meet the criteria for having PTSD.
111
PTSD has been known to detrimentally affect the credibility of asylum
seekers, due to the fact that their diminished or hidden mental health may
cause them serious difficulties in providing medical/legal evidence which
the board deems valid.
112
Such difficulties, it must be noted, are also faced
in international tribunals in attempting to glean information and evidence
from traumatised witnesses. However, these difficulties are compounded in
the refugee context. General difficulties faced by refugees, such as poor
reception or camp conditions and language difficulties, as well as further
violence, which may have been experienced as part of the refugee cycle,
may cause asylum seekers to become re-traumatised.
113
C. The Competence of the Decision-Maker in Interpreting Relevant Law
In mass influx situations involving the UNHCR, somewhat of an advantage
exists insofar as the decision-makers have UNHCR legal resources and staff
training at their disposal, which they may use to conduct their assessments.
However, the resources of the UNHCR are limited, and when faced with
huge numbers of refugees, an attempt to provide thorough legal exclusion
assessments for every asylum seeker may simply prove too onerous. For
example, in Zaire, a country to which 1.2 million Rwandans fled, the scale
of the number of refugees, as well as the security concerns within the site
necessitated an expedient and cost-effective solution. Despite the fact that
providing detailed exclusion assessments on every individual may be the
only way to fully discharge the responsibility of the UNHCR to exclude
persons, this would, it is submitted, be neither expedient nor cost-effective.
In regular eligibility assessments, it should be noted that the
determining states often have weak legal systems and insufficient resources
which render it difficult to provide an assessment equivalent to that of an
international tribunal, in terms of interpreting and providing adequate
research on international law.
114
First, decision-makers have to contend with two areas of law in
conducting assessments. An immediate potential issue with this arises with
the reality that states that have ratified Geneva Convention may not have
111
Phuong Pham, Harvey Weinstein and Timothy Longman, “Trauma and PTSD Symptoms
in Rwanda: Implications for Attitudes Toward Justice and Reconciliation” (2004) 5 Journal of
the American Medical Association 292, at 602.
112
Gojer and Ellis, note 110, at 6.
113
UNHCR, Sexual and Gender Based Violence against Refugees, Returnees and Internally
Displaced Persons: Guidelines for Prevention and Response (UNHCR, May 2003), at 20.
114
Bond, note 56, at 47.
103 Trinity College Law Review [vol 18
necessarily ratified the Rome Statute as well. Indeed, Israel and the United
States have expressly declared that they do not intend to ratify Rome Statute.
Although this area merits more discussion than is permitted by the limited
scope of this article, it is worth noting that for such states, the
appropriateness of interpreting their obligations under the Geneva
Conventions in light of a treaty which they have refused to ratify, merits
serious question in light the 1969 Vienna Convention on the Law of
Treaties, which provides that states have no obligations towards a treaty if
they have made it clear that they do not intend to ratify the treaty.
115
A further issue arises from the plethora of sources a decision-maker
must consult in order to be thorough in their assessments. Decision-makers
would have to consult the Refugee Convention, the UNHCR Guidelines and
Background Note, international criminal law statutes and jurisprudence.
This amount of information can make the interpretative task difficult for a
decision-maker; as inter alia it may be difficult to identify the document to
which he or she should turn first for guidance, and to what extent. Indeed,
lack of familiarity with the relevant documents is evident within the case
law. In Dr. M the court allowed for revocation based on matters which arose
subsequent to refugee status being granted, drawing its basis for that on the
fact that it could be allowed for conditions which had ceased to exist.
116
Although the Courts use of provisions within the Convention could be
applauded for its creativity here, its reasoning is somewhat tenuous. Indeed,
Satvinder Singh Juss states that the Court over-reached itself, insofar as the
conditions which had ceased to exist are a reference merely to
persecution.
117
Furthermore, if the drafters had intended for revocation for
refugees for whom persecution still exists, one would imagine they would
have included this explicitly. Although this arguably indicates a lack of
familiarity of the Convention on the part of the Court, it is perhaps
significant to note that the Court, in contrast to that in Mugusera, did not
engage with international criminal law in its judgment other than to briefly
cite the Rome Statute.
118
Use of the exclusion clause to permit revocation,
without any engagement with the instruments it mentions, would appear
irresponsible, yet it is difficult to blame the Court, given the wealth of
differing interpretive documents presented.
115
(visited 28 January 2015), at Art. 18(a).
116
Satvinder Singh Juss, “Complicity, Exclusion, and the ‘Unworthy’ in Refugee Law” (2012)
31(3) Refugee Survey Quarterly, at 18.
117
Ibid., at 16.
118
Dr. M, at para. 158.
2015] Exclusion Clause in the Refugee Convention 104
A final difficulty exists in the inherently inconsistent nature of
international criminal law case law. For example, although the statutes
through the years have remained relatively consistent, judicial activism has
resulted in a situation where the requirements of a crime may vary from year
to year, and from Tribunal to Tribunal. For example, in the ICTY case of
Perišić,
119
it was held that aiding and abetting must be specifically
directed at the crime. This was a huge development as it made prosecution
through this means significantly more difficult. However, the Special Court
for Sierra Leone rejected this in the Charles Taylor appeal,
120
leading to
ambiguity within international criminal law as to whether specific direction
is an element of the crime or not. As the Tribunals operate based on a
doctrine of precedence, it is unclear what the ICTY itself, or indeed, another
similar international tribunal would do in a similar case.
Such confusion is also evident within the Rwandan context. In Dr. M,
refugee status was revoked, based on Dr. Ms leadership of the FDLR. Both
the Guidelines and Rome Statute state that a leader may be responsible for
crimes by his forces if he or she knew, or should have known about the
crimes committed, and failed to prevent them.
121
Dr. M, however, was in
Germany at the time, and no evidence was introduced to the effect that he
either knew about the RPLFs crimes, or, indeed, should have done. Rather,
Juss describes Dr. Ms responsibility as seeming to have been assumed by
way of complicity by association,
122
and points out the fact that a lower
court, in examining the exact same facts and legal provisions, came to the
opposite conclusion, that Dr. M was not liable for the crimes of the FDLR.
It is contended that this highlights the disparities that may occur when
decision-makers must assess exclusion based on a body of law that is often
unclear and in flux. Overall, one should bear in mind the role of resources
in this regard; international criminal tribunals, funded by the UN or states,
can afford experienced lawyers and judges who are well versed in
international law and the transport witnesses and evidence. However, the
average state or indeed the UNHCR, in situations of mass influx, is more
limited in terms of resources, and it is therefore reasonable, in that regard,
to expect that the law would not be applied to the same standard.
119
Prosecutor v Momčilo Perišić (Appeals Chamber Judgment), IT-04-81-A (28 February
2013).
120
Prosecutor v Charles Taylor (Appeals Chamber Judgment), SCSL-03-01-A (26 September
2013), at para. 481.
121
Rome Statute, note 24, Article 28; UNHCR Guidelines, note 10, at para. 18.
122
Juss, note 116, at 6.
105 Trinity College Law Review [vol 18
D. Fair Trial Rights and Rule of Law Concerns when Returning an
Individual
The next issue concerns the consequences when an individual is deemed
excludable, and is then returned to his or her country of origin, by means of
deportation or extradition. This, it will be argued, encompasses its own
difficulties in terms of the intersection of international criminal law and
exclusion, with regard specifically to fair trial rights and the rule of law.
As noted above, substantial concerns regarding fair trial rights within
Rwandas prosecutions of genocide-related acts exist, to the extent that
neither the Court in Vincent Brown nor the ICTR were willing to transfer
individuals to Rwanda to face trial in the High Court. Although the ICTR
has since transferred some defendants to Rwanda, concerns regarding fair
trial rights have not entirely been dispelled, insofar as questions concerning
witness intimidation and the independence of the judiciary still exist.
123
However, in the past, depending on when an individual was returned, he or
she could possibly have been subject to arbitrary detention, possibly no legal
representation, or even summary execution.
124
In such a situation, the
excluded individual, upon return, may arguably face persecution, rather than
prosecution by a competent tribunal. Conversely one may argue that an
excluded individual may be returned, and may not face prosecution for the
alleged crimes for which he or she was excluded. Such an eventuality could
occur, for example, in the context of a member of the RPF seeking asylum
abroad, based on some (presumably not state-enacted) alleged persecution,
who had committed war crimes. The Rwandan governments failure to
pursue prosecution of RPF soldiers for their crimes subsequent to the
genocide indicates that such an individual, upon return, would likely not
face prosecution.
125
Such situations, made possible by the Exclusion Clause, ironically
contravene the very essence of international criminal law, which seeks
accountability and the promotion of the rule of law, and enshrines fair trial
rights.
126
However, it is important to note here that even upon exclusion,
returning an individual to his or her home state may not be possible, or even
permitted. Human rights law, for example, with the principle of non-
refoulement, has provided that individuals may not be returned to their home
123
Human Rights Watch, note 35, at 8-9.
124
Amnesty International, note 38, at 3-7.
125
Only 14 RPF soldiers have been convicted of crimes committed in 1994. See Human Rights
Watch, note 37, at 4.
126
Rome Statute, note 24, Art 67. See also Arts. 21(3); 55; 66; 74.
2015] Exclusion Clause in the Refugee Convention 106
states if there are substantial grounds for believing that [they] would be in
danger of being subjected to torture.
127
Although a detailed discussion is
not possible within the limited scope of this article, it merits note, as this
prohibition can be found in the Convention against Torture and Other Forms
of Inhuman and Degrading Treatment,
128
the International Covenant on
Civil and Political Rights,
129
and the European Court of Human Rights,
130
and, significantly, it is absolute.
131
In the context of the risk of persecution
upon return which would not amount to torture, the UNHCR has provided
that there should be a proportionality assessment after the exclusion
assessment, to weigh the consequences of return against the gravity of the
crime.
132
However, if the persecution faced upon return is deemed too great,
a state is left with a problematic situation wherein the individual concerned
is neither afforded the benefits of the Refugee Convention, nor may be
returned to his or her country of origin. A suggested solution is that the states
themselves would prosecute the individuals for the alleged crimes.
133
However, as outlined by ONeill, this brings about its own difficulties, in
terms of jurisdiction over crimes committed in another state, and in terms of
resources when the host state may be overburdened and underfunded.
134
It
is therefore in the interest of the state concerned to simply return an
excluded individual, if at all possible.
E. Standard of Proof
The final issue of analysis, that of standard of proof, is a brief one, but
nevertheless important to consider. The Refugee Convention requires
serious reasons for considering that alleged crimes have been committed.
The Canadian Supreme Court provides an explanation as to the meaning and
scope of this requirement. In Mugusera the Court stated that the standard
127
United Nations, Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (United Nations, 1984), 1465 United Nations Treaty Series, at 85,
Article 3.
128
Ibid.
129
United Nations General Assembly, International Covenant on Civil and Political Rights,
(United Nations, 1966), 999 United Nations Treaty Series, at 171, Article 7.
130
Fundamental Freedoms, as amended by Protocols 11 and 14, (Council of Europe, 1950) ETS
5.
131
See Chahal v United Kingdom, European Court of Human Rights, Application No.
22411/93, (15 November 1996).
132
UNHCR, note 11, at para. 70.
133
Rikhof, note 22, at 460.
134
O’Neill, note 52, at 139-140.
107 Trinity College Law Review [vol 18
requires something more than mere suspicion, but less than the standard
applicable in civil matters of proof on the balance of probabilities.
135
International criminal law, however, requires the stricter standard of proof
beyond a reasonable doubt for convictions.
136
The standard of proof for
indictments, however, is relaxed to a requirement for reasonable grounds
to believe,
137
which Joseph Rikhof describes as equivalent to serious
reasons.
138
It is contended that there are two implications for what would seem to
be the lower standard of proof of the Convention. First, it allows for the
possibility that claimants would be excluded from the Refugee Convention
for crimes of which they may not be convicted in an international tribunal.
However, it may be argued that the lower standard may be balanced by the
logistical challenges inherent in RSDs, such as evidentiary issues and the
resources of host states. These certainly would render discharging this
standard of proof to be more onerous. However that notwithstanding, in the
Dr. M case, the appellants refugee status was revoked, despite significant
evidentiary issues. Secondly, it is possible that an individual could be
indicted for a crime, seek asylum in another state, only to find that his
indictment renders him automatically excludable, by virtue of the fact that
his indictment was secured at the same standard of proof required to exclude
him. As outlined by Rikhof, this is of particular concern if the individual
was acquitted of the crime for which he was indicted.
139
Concluding Observations
Given that the overall aim of the Refugee Convention is to protect those in
fear of persecution, and that the aim of international criminal law is to
prosecute those culpable of the most serious crimes, one would expect to
encounter some difficulties when the two intersect. This article has sought
to highlight some of these difficulties, using Rwanda as a case study, both
in terms of group determinations by the UNHCR within neighbouring states,
and in regular determinations further afield. It was argued that a lack of
consideration of mitigating factors, logistical and legal challenges, and
lower standard of proof may result in claimants being refused refugee status
for crimes of which they may not have been convicted, or for which they
135
Mugusera, note 72, at para. 104.
136
For example, see Rome Statute, note 24, Art. 66(3).
137
Ibid., Art. 61(7).
138
Rikhof, note 22, at 111.
139
Ibid., at 114.
2015] Exclusion Clause in the Refugee Convention 108
may have received a relatively light sentence, within international criminal
law, from which these crimes are drawn. Furthermore, if the claimants are
returned, they may face breach of their fair trial rights, or avoid coming
under the rule of law entirely.
The challenges for host states and the UNHCR were considered; they
are often overburdened, and thus, attempts to improve efficiency are of
paramount concern. Additionally, logistical difficulties in terms of evidence
and trying to keep abreast of developments within international criminal law
present significant difficulties. However, these challenges do not relieve the
State of its responsibilities under the Refugee Convention; the Exclusion
Clause was not designed to be a get-out clause. Indeed, as Juss states,
[t]he Refugee Convention was never intended to become subservient to
the interests of the dominant powers in their own wars. This human rights
document was intended to act as a protection mechanism for those in fear of
persecution - even when they were involved in political struggles that were
far from pleasant.
140
Today, although Rwanda is happily no longer a huge concern in terms
of the exclusion clause,
141
the clause will continue to be an issue as long as
there are population movements resulting from situations of conflict. At the
time of writing, there are over 3,700,000 registered Syrian refugees,
142
a
figure which is still growing, and some of whom may have committed
serious crimes, possibly worthy of exclusion. The UNHCR has stated:
[t]here remains a need for further thought on how the UNHCR and
the international community as a whole should deal with a refugee
leadership that may be subject to the exclusion clause. In this respect,
the Rwandan case is not unique: other cases of genocide have
occurred in recent history and may yet occur again.
143
It is therefore important to find a means to balance the right of a persecuted
individual to protection with a states right to protect its borders and prevent
those undeserving of refugee status from availing of asylum. Having
examined such challenges in terms of the Rwandan Genocide, this article
provides some suggestions as to how best to find such a balance. First, it is
suggested that in terms of mass influx cases, the UNHCR should conduct
140
Juss, note 116, at 2.
141
Due to the invocation of cessation clauses. See UNHCR, Ending of Refugee status for
Rwanda approaching (visited 7 December 2014).
142
UNHCR, Regional Overview: Syria >
(visited 15 January 2015).
143
UNHCR, note 10, at para. 43.
109 Trinity College Law Review [vol 18
initial screening processes,
144
rather than providing group determinations,
so as to identify those in need of a more thorough exclusion assessment.
Secondly, mitigating factors coming from derivative liability or duress
should be taken into account under the UNHCRs Guidelines, so that only
those who are truly the most culpable are excluded. Thirdly, the high
standard of proof in criminal law exists due to the rationale that to impose
criminal sanctions such as a prison sentence on an individual is a huge
infringement on his or her rights; there must, therefore, be a very convincing
case that such interference is justified. To deprive someone of the benefits
of the Refugee Convention when they are in fear of serious persecution is,
arguably, a comparably large interference. It is therefore suggested that the
case for excluding an individual protection also merits a beyond reasonable
doubt standard. Finally, it is acknowledged that although the Guidelines
are useful, and adhere to international criminal law reasonably well, the
adherence to international criminal law standards overall within domestic
jurisprudence examined, was somewhat inconsistent and blurry
145
overall.
Indeed, it is contended that a helpful tool in achieving consistency
internationally would be found in greater reliance on international criminal
law standards and jurisprudence by the judiciary, outside of the
Guidelines.
146
Currently, less than 0.5% of the overall flows of refugees are
excluded.
147
It would therefore appear that the Exclusion Clause, although
applied somewhat inconsistently, is not being abused to an alarming degree.
It is, however, important to ensure that this remains the case. In the face of
potential future refugee crises, one should remember that the Refugee
Convention exists to protect the most vulnerable. Article 1F(a) should
therefore only be used when faced with a significant degree of culpability
and as an exception to the general rule where non-application would result
in upsetting the very equilibrium of society.
148
144
As provided in the UNHCR Mass Influx Guidelines, note 71, at para. 55. Not in existence
during the Rwandan crisis.
145
Rikhof, note 22, at 374.
146
Ibid.
147
Ibid., at 369.
148
Ibid.

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