Published in July 2018.
This module is a resource for lecturers
International refugee law
The other key legal regime which forms an integral part of the international legal framework governing counter-terrorism, as is reflected in the United Nations CT Strategy, is international refugee law. A number of United Nations agencies have become involved in counter-terrorism issues through perceived necessity rather than design, even though it is not always entirely clear what their mandate may be on these issues. For instance, the United Nations High Commission for Refugees (UNHCR) is seeking to inform and influence national and international policies and practices in relation to the current migrant crisis. At present, there are an estimated 21.7 million refugees worldwide. In response to refugee flows, together with accompanying fears that the crisis may be facilitating terrorist activities, some countries have imposed restrictive border controls or visa requirements, citing national security as a reason. Consequently, UNHCR has been urging States to comply with these obligations under international refugee law (United Nations, High Commission for Refugees, 2017).
International refugee legal instruments
The principal legal instruments governing protection for refugees (defined under article 1(2)) and asylum-seekers is the Convention relating to the Status of Refugees 1951 (Treaty Series , vol. 189, p. 137) (1951 Refugee Convention) and its accompanying Protocol Relating to the Status of Refugees (Treaty Series, vol. 606, p. 267) which removed the geographic and temporal limits of the 1951 Refugee Convention, thereby giving it universal coverage. The 1951 Refugee Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January 1951 and within Europe.
In terms of scope, under its article 1 definition, the Refugee Convention applies to all 'refugees' regardless of what ethnic, racial, etc. groups they may come from. Under article 1(2) Refugee Convention 1951, a refugee is defined in the following terms:
As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
As such, a 'refugee' is a person requiring protection from political or other forms of persecution.
The Convention is both a status (articles 12-16 on juridical status) and rights-based (e.g., articles 17-19 on gainful employment, and articles 20-24 on welfare) instrument. It is underpinned by a number of fundamental principles, most notably non-discrimination (articles 3 and 4), non-penalization (articles 31 and 32) and non-refoulement (article 33 - see below). This approach establishes basic minimum standards for the treatment of refugees without prejudice to States granting more favourable treatment. The Convention's provisions, such as its principle of non-discrimination and access to various civil, political, social, economic and cultural rights, should be interpreted through subsequent developments in international human rights law, including those reflected in the ICCPR and ICESCR including their accompanying treaty body jurisprudence. That said, asylum-seekers and refugees are not guaranteed the full benefit of all of the Covenants' provisions.
Not all persons are entitled to protection under the international refugee system. That said, it should be pointed out at this juncture that significant sensitivities and debates surround any use of refugee/asylum instruments to exclude suspected terrorists, including from a human rights law perspective. As such, the issues discussed here remain contentious.
Article 1(F) of the 1951 Refugee Convention provides that it "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."
In terms of understanding the potential reach of article 1F, its original intention was to permit States to exclude persons who had previously committed such serious non-political crimes outside of the country of refuge that they should not be allowed to benefit from international protection as refugees in another host country. Indeed, the original 1946 Constitution of the International Refugee Organization excluded from its mandate any persons who "participated in any terrorist organization".
A specific challenge here though is that no consistency of approach exists in relation to terrorist offences in the absence of a universal definition of terrorism, making it difficult to determine, for instance, when the necessary seriousness test has been satisfied. The anti-terrorism legislation of some States can also be broad with the accompanying risk that it may incorporate the non-terrorist activities of political or human rights activists. Additionally, there can be many associated challenges in enforcing and defending this provision, such as obtaining reliable, admissible evidence.
Furthermore, under article 32(1) of the 1951 Refugee Convention, States parties are permitted to expel those entitled to 'refugee' status on grounds of national security or public order. In other words, because they pose a significant current or future threat to national security, countries of refuge are permitted to expel such persons in order to protect themselves. Normally, as required by article 32(2), a refugee should only be expelled "in pursuance of a decision reached in accordance with due process of law", though the process exceptionally may be expedited and shortened "where compelling reasons of national security otherwise require". In terms of what this might mean in practice, it has been suggested that:
This means that there must be a causal link between the refugee and the danger posed; it must be demonstrated that the danger is sufficiently serious and likely to be realized; that the removal is a proportionate response to the perceived danger; that removal will alleviate or even eliminate the danger; and such mechanism is used as a last resort where no other possibilities of alleviating the danger exist. (Samuel, White and Salinas de Frias, 2012, p. 59).
Such safeguards are important to mitigate the risk of States expelling groups or individuals based on religious, ethnic or national origin, or political affiliation, on the mere assumption that they may be involved in terrorism. Certainly, there are lingering concerns regarding the potential for asylum procedures to be misused as a means of by-passing normal criminal due process safeguards. (See further commentary here).
In addition, potentially wide-ranging powers are provided for under article 9 of the 1951 Refugee Convention. This states that a Contracting State "in time of war or other grave and exceptional circumstances" may take provisional measures "which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security".
All this said, as with other elements of the international legal framework, there can be inherent tensions between security and the upholding of these rights. An overriding concern is always that the refugee system of protection is not undermined, deliberately or otherwise, by States in their counter-terrorism responses. As UNHCR stated in 2001, which remains true today:
Any discussion on security safeguards should start from the assumption that refugees are themselves escaping persecution and violence, including terrorist acts, and are not the perpetrators of such acts. Another starting point is that the international refugee instruments do not provide a safe haven to terrorists and do not protect them from criminal prosecution. On the contrary, they render the identification of persons engaged in terrorist activities possible and necessary, foresee their exclusion from refugee status and do not shield them against either criminal prosecution or expulsion. (United Nations, High Commissioner for Refugees, 2015).
Another important instrument in this context is Security Council Resolution 1373, a central focus of which is to ensure that no avenue exists for terrorists to secure access to territory, whether to find a safe haven, avoid prosecution or to carry out further attacks. Therefore, the Resolution touches upon a number of issues related to immigration and refugee status. States are required to prevent the movement of terrorists by implementing effective border controls and to take measures to secure the integrity of identity papers and travel documents (para. 2 (g)). States are also called upon to take measures to ensure that refugee status is not granted to asylum seekers who have planned, facilitated or participated in terrorist acts (para. 3 (f)) and to ensure that refugee status is not abused by perpetrators, organizers or facilitators of terrorist acts.
Those requirements do not create new obligations under international refugee law. They simply recognize that appropriate mechanisms need to be put in place in the field of asylum, as they have been in other domains. At the same time, care should be taken to ensure a proper balance with the principles of refugee protection. All persons have a right to seek asylum. Public safety and security measures should not have the effect of criminalizing refugees. The 1951 Refugee Convention, when properly implemented, is sufficient to ensure that international refugee protection is not extended to those who have induced, facilitated or perpetrated serious crimes, a category that includes terrorist acts.
This legal regime has been supplemented by other refugee and subsidiary protection regimes, as well as through the progressive development of international human rights law. For example, the 1985 General Assembly Declaration on the Human Rights of Individuals who are not nationals of the country in which they live (United Nations, General Assembly, 1985(b), A/RES/40/144). This articulates that 'aliens', that is individuals who are not nationals of the State in which they are present, should be afforded basic rights and protections, similar to though not as extensive as those articulated in the 1951 Refugee Convention and 1967 Protocol.
Furthermore, several regional human rights systems (see Module 5) have adopted instruments:
- Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa ( Treaty Series, vol. 1001, p. 45) (adopted 10 September 1969).
- European Union, Council of the European Union, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted . 13 December 2011. Official Journal of the European Union L. 337.
- The Cartagena Declaration on Refugees, adopted at a colloquium held at Cartagena, Colombia, 19-22 November 1984, while non-binding, also sets out regional standards for refugees in Central America, Mexico and Panama.
Principle of non-refoulement
Probably the most significant single principle of international refugee law in terms of its impact and reach in a counter-terrorism context is that of non-refoulement. The starting point for analysing this principle is article 33 of the 1951 Refugee Convention, which prohibits the expulsion or return ( refoulement) of refugees in the following circumstances:
1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
This provision is intended to act as a safeguard against the expulsion (or deportation, extradition or return) of refugees as well as asylum-seekers, and is regarded by at least some to be the cornerstone principle of the international asylum and refugee law (Samuel, White and Salinas de Frias, 2012, p. 61). It can extend also to situations where any attempt is made to prevent asylum-seekers from reaching their territory in order to make an asylum request, a practice which may also amount to refoulement.
In terms of its status, the principle is generally considered to be underpinned by the prohibition against torture, which is a non-derogable, jus cogens principle, thereby representing the highest category of legal principle ( Prosecutor v. Anto Furundzija, 1998, paras. 144-54; Al-Adsani v United Kingdom, 2001, paras. 60-61). As a principle of jus cogens, there are associated erga omnes obligations upon the international community, including to respect and uphold the principle in situations where the risk of torture and so forth exists. Notably too, the principle of non-refoulement is provided for in article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1985. What these principles mean in practice is that a State is prohibited from expelling a person to another State where there are substantial grounds for believing he would be at risk of torture or other serious human rights violations.
Similarly, the principle is reflected in and has been developed under various regional and international human rights instruments and mechanisms. Even though the principle has not been provided for expressly within other instruments, its existence and operation are reflected within the jurisprudence of the associated human rights mechanisms, including in interpreting the ICCPR, the American Charter on Human Rights 1969, and the European Convention on Human Rights 1950. This has been particularly evident in relation to the prohibition against torture and other forms of cruel, inhuman, or degrading treatment or punishment. For example, as the European Court of Human Rights held in unequivocal terms in the case of Chahal v United Kingdom (1996, para. 80) , and has repeated subsequently ( N v Finland, 2005, para. 159; Saadi v Italy, 2008, para. 138; Shamayev v Georgia and Russia, 2005, para. 368), States are not permitted to balance even significant national security imperatives against a non-derogable norm such as the prohibition of torture where real risks of ill-treatment exist following a person's return to another State. Clearly this can pose challenges for States in practice as to how they manage the continued presence of such persons within their territory.
Notably too, the principle of non-refoulement has not been static; instead, it continues to evolve including in terms of its reach within counter-terrorism contexts ( Omar Othman (Abu Qataba) v UK, 2012). The relationship between this and other human rights principles is examined in subsequent Modules (see Modules 9 and 10).