Resumen de Punishment and Protection, Two Sides of the Same Sword: The Problem of International Criminal Law Under the Refugee Convention
This Note problematizes the role and purposes of international criminal law under the international refugee regime. Article 1A of the 1951 Refugee Convention defines a refugee as a person who has left his or her country of nationality and is unwilling to return because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Article 1F of the Convention contains exceptions to Article 1A that exclude certain individuals from refugee status. Article 1F(a), the focus of this Note, denies refugee status if there are serious reasons for considering that the asylum applicant “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.” The framework of the Convention, through the structure of Article 1, thus situates international crimes at the center of the refugee regime.
By striking a balance between protecting the world’s most vulnerable people and denying safe haven to international criminals, the Convention’s drafters contemplated a role for international criminal law, a body of statutes and jurisprudence that would develop significantly in the ensuing decades. The result is the adjudication of international criminal law doctrines in domestic immigration tribunals—unequivocally civil, not criminal, settings. Adjudicators in asylum hearings must grapple with evolving and sometimes inconsistent principles of international criminal law that have grown out of ad hoc tribunals and culminated in the International Criminal Court at the beginning of the Twenty-First Century.
The stakes of this assimilation of international criminal law into the refugee context are high: many more individuals allegedly implicated in international crimes pass through immigration tribunals than will set foot in international criminal courts. Immigration tribunals across the globe have become scattered echoes of international criminal courts, attempting to tailor international criminal law to a non-criminal context where the stakes of life and liberty are exceedingly high. There is a need for a coordinated global effort to develop clear and consistent principles from international criminal law that are suitable for exclusion proceedings. Until then, the Convention’s guarantee of protection may be elusive even for those who need it most.
