Published in July 2018.
This module is a resource for lecturers
Current challenges to the international legal framework
Though the increased interrelationship between asylum and refugee principles and other legal regimes forming the core international legal framework within which counter-terrorism responses should occur is positive on the one hand, not least in terms of promoting the principles of each of the identified legal regimes, it is not without its associated challenges.
One significant issue is that international refugee law was not originally designed to be or implemented as a counter-terrorism tool. As such, its identification as a key legal regime within the international counter-terrorism legal framework has the potential to impact adversely on the protection of asylum seekers and refugees, affording such persons less rather than equivalent or more protection. Such sentiments were captured by UNHCR in response to increased counter-terrorism measures following the 9/11 terrorist attacks:
Equating asylum with a safe haven for terrorists is not only legally wrong and thus far unsupported by facts, but it serves to vilify refugees in the public mind and promotes the singling out of persons of particular races or religions for discrimination and hate-based harassment.
Since 11 September, a number of immigrant and refugee communities have suffered attacks and harassment based on perceived ethnicity or religion, heightening social tensions. While there are some asylum-seekers and refugees who have been, or will be, associated with serious crime, this does not mean that the majority should be damned by association with the few. (United Nations, High Commissioner for Refugees, 2015).
Another issue has been that some States have applied an exclusion clause to 'terrorists' on a collective basis, by relying on lists of proscribed terrorists and terrorist organizations such as those of the United Nations and European Union, rather than making individual assessments. From a rule of law perspective, such approaches are not always accompanied by basic levels of due process and can be difficult to challenge successfully including in a court of law (see Module 11). Another related problem is that such an approach does not address the underlying issues, but instead removes the problem from one State to another one.
That said, a number of these challenges and risks could be regarded as being at least partially offset by the benefits of integrating international refugee law within the international legal framework. It could be argued that reconciling national security interests with the right to be protected from refoulement is best served when different fields of law are combined. Applying refugee law alongside criminal law, extradition law, and human rights law can serve an important function in terms of correctly ensuring that anyone involved in terrorist activities is denied refugee protection. Conversely, protecting national security interests by prosecuting individuals in accordance with due process, safeguarding the rights and protection of the most vulnerable, and taking other appropriate measures to protect basic human rights, keeps the upholding of the rule of law at the centre of counter-terrorism responses.