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A Refugee or a Fugitive?: A study of the exclusion article 1F in the Refugee Convention in International Law and Swedish legislation and the consequences for an excluded asylum seeker according to Human Rights Law and International Criminal Law 
Örebro University. Örebro University, Department of Behavioural, Social and Legal Sciences.
2008 (English)Independent thesis Advanced level (degree of Master (One Year)), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

This essay is aimed at examining how the exclusion clause 1F in the Convention Relating to the Status of Refugees should be applied and what applies to an asylum seeker who has committed a crime falling under the exclusion clause but claims to be at risk of facing persecution or ill – treatment upon return to his home country. Apart from examining article 1F in the Refugee Convention relevant Human Right conventions were also studied and International Criminal Law for the possibilities to prosecute the alleged criminal. The legislation of Sweden was highlighted as an example of how international law is implemented at national level.

 

At the time of adopting the Refugee Convention the world was passing into a different era. World War II was fresh in peoples’ minds and there was a moral reasoning behind the exclusion clause 1F; some individuals did not deserve to be recognized as refugees and internationally protected because of the heinous crimes they had committed. Since then, though, international human rights law has evolved, and has come to even in some cases include those that the Refugee Convention excludes with regard to the absolute prohibition of refoulement in various instruments, for instance in article 3 in the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Problems do obviously arise in applying both article 1F as well as the non-refoulement provisions, where the risk of ill-treatment should be properly assessed as well as the exclusion clauses applied restrictively without a clear presumption of exclusion following the overall humanitarian purpose of the Refugee Convention. However, current European legislation seems to suggest a widening of article 1F, including national safety reasons as exclusion ground above the crimes under 1F, which has also been practiced in Sweden since the implementation of the Refugee Convention.

 

Another purpose behind the exclusion clause 1F was that these guilty of committing the crimes should not escape punishment by seeking refuge in another country. That reasoning does not entirely hold ground today. The principle of aut dedere aut judicare (to prosecute or extradite) has also strengthened the last decades, especially considering the fact that today there is in addition to the ad hoc courts also a permanent criminal court that can prosecute individuals who are suspected of having committed crimes within 1F (a). It does lack jurisdiction over crimes included in 1F (b) and (c) and can experience considerable problems, for instance with states unwilling to extradite their citizens and it only holds a quasi-universal jurisdiction. However; as a last resort, there is a possibility for the Security Council to intervene. Sweden holds universal jurisdiction over the most serious crimes, where the anticipated punishment would exceed four years. In practice that entails that Sweden can prosecute individuals responsible for crimes included in 1F. If the system would work impeccably, few individuals would escape justice.

 

In conclusion there are many mechanisms today that encourage a restrictive application of article 1F – besides making sure that the non-refoulement principle is not violated, there now exists possibilities to make alleged perpetrators of crimes included in 1F face justice and do not necessarily escape prosecution even though internationally protected.

 

Place, publisher, year, edition, pages
2008. , 43 p.
Keyword [en]
refugee, exclusion
National Category
Law Law and Society Law and Society
Identifiers
URN: urn:nbn:se:oru:diva-6090ISRN: ORU-JPS/RÄT-AG-2009/0029--SEOAI: oai:DiVA.org:oru-6090DiVA: diva2:209198
Presentation
2008-08-29, Örebro Universitet, Fakultetsgatan 1, 701 82, Örebro, 09:00 (Swedish)
Uppsok
Social and Behavioural Science, Law
Supervisors
Examiners
Available from: 2009-10-14 Created: 2009-03-24 Last updated: 2009-10-15Bibliographically approved

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