Article 1F of the Refugee Convention says that the Convention shall not apply to any person with respect to whom there are serious reasons for considering the followings: 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 ad-mission to that country as a refugee; c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
According to the travaux préparatoires, the purpose of Article 1F was twofold: firstly, to deny the benefits of refugee status to those persons who would otherwise qualify as ref-ugees but who do not deserve it because there are serious reasons for considering that they committed heinous acts or serious common crimes; secondly, to ensure that such persons do not misuse the institution of asylum in order to avoid being held legally accountable for their acts.18 On the question whether inclusion or exclusion has to be established first, the UNHCR has a clear point of view: the inclusion has to be considered before exclusion. It is important to assess if the person has a well-founded fear of persecution and take a pro-portionality test or to establish if the person may rely on the prohibition of refoulement.19
There are a number of questions that must be answered when applying Article 1F: are there serious reasons to consider that the asylum seeker may have committed an excludable act; does the act with which the asylum seeker a crime or act as mentioned in Article 1F,
16 Directive 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted; 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.
17 Even the draft of the UN Comprehensive Convention on International Terrorism does not declare that mem-bership of a terrorist organization might constitute an offence. In Bruin–Wouters (2003): op. cit. 7–8.
18 UNHCR Statement on Article 1F of the 1951 Convention, July 2009, para 2.1.
19 UNHCR Handbook para. 176–177.
can the asylum seeker be held responsible for the act, are there any grounds for rejecting individual responsibility?20 The phrase there are serious grounds means that no final penal judgement is needed to exclude the asylum seeker when applying Article 1F. It is sufficient that the established facts and circumstances of the case provide serious reasons for consid-ering that the individual committed the act, or in any other way can be held responsible for the act.21 Article 1F (a) of the Refugee Convention relates to international instruments in general that define the crimes against peace, war crimes and crimes against humanity. From international sources it can be concluded that crimes against peace can be committed in the context of the planning or waging of a war or armed conflict. As wars or armed conflicts can be waged by states or state-like entities, crimes against peace can be committed by individuals who possess very high ranks.22 Serious violations of international humanitarian law constitute war crimes.23 War crimes may be committed in times of international or in non-international armed conflicts not only against civilians but military persons, as well.
According to the 1998 Rome Statute of the International Criminal Court (ICC Statute) crimes against humanity are fundamentally inhuman acts like murder, extermination, enslavement, and deportation of a population, severe deprivation of physical liberty, and are committed as part of a widespread or systematic attack directed against any civilian population and with the knowledge of the attack.24 The widespread and systematic attacks against civilian population are the characteristics that make crimes against humanity dis-tinguishable from common crimes. An inhuman act against an individual may constitute a crime against humanity if it is a part of a coherent system or a series of systematic and
20 Boeles, Pieter – den Heijer, Maarten et al. (2009): International Refugee Protection. In European Migration Law. Antwerp–Oxford–Portland, Intersentia. 276. Article 6 of the 1945 Charter of the International Military Tribunal concerning the prosecution of Nazi war criminals defines a crime against peace the “planning, prepa-ration, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”.
The United Nations General Assembly resolution 3312 (XXIX), 1974 considers aggression the “use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations”. The International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind in Article 16 on the crime of aggression says that: “an individual, who, as a leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression”.
21 Ibid. 277.
22 Ibid. 278–279.
23 Article 8 of the Statute of International Criminal Court (ICC) defines war crimes inter alia as “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”. This is reflected in the jurisdiction of the International Tribunal for the Former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone and UNTAET Regulation No. 2000 for East Timor. Article 3 of the Statute of the International Criminal Tribunal on war crimes was interpreted in the Delalic case in 2001 by the Appeals Chamber stating that “laws and customs of war” included all laws and customs beside those listed in the Article. “Serious violation” is to be interpreted according to the military manual and legislation of the States. Available: https://ihl-databases.
icrc.org/customary-ihl/eng/docs/v1_rul_rule156 (Accessed: 29.10.2017)
24 ICC Statute Article 7 (1).
repeated acts.25 The most common crime against humanity is genocide.26 Crimes against humanity may be committed in peace time, as well as in war times.
According to Article 1F (b) any person with respect to whom there are serious reasons for considering that he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee is excluded from being granted international protection. What constitutes to be a serious crime27 has different meanings in the national legal systems of the States but according to the UNHCR’s Handbook, a serious crime must be a capital crime or a very grave punishable act.28
The UNHCR considers that a serious crime should be considered non-political when other motives – such as personal reasons, causing fear and terror or gain – are the predom-inant feature of the specific crime committed.29 The predominance test has to be taken into consideration when assessing the non-political nature of a crime. Violent acts as hostage taking of civilians and torture or acts of terrorism always fail the predominance test as they are disproportionate to any political objective. The non-political serious crime must be committed by the individual prior to his admission as a refugee in the country. This means that the crimes should be committed prior to entering and staying as an asylum seeker in the country. The ratio behind this limitation is that a person who commits a serious non-political crime within the country of refuge is subject to the ordinary criminal laws of that country and may be expelled from that country in accordance with Article 32 (2) and 33 (2) of the Refugee Convention.30
The meaning of admission differs when interpreting the Refugee Convention and the EU Qualification Directive. The drafters of the Refugee Conventions were guided by the general aim that the term admission must be understood as referring to the person’s physi-cal presence and not his recognition as a refugee. Contrary to this, in the EU Qualification Directive admission means the time of granting refugee status. In this sense, the individual can be excluded from international protection for having committed a serious non-political crime also when that crime has been committed while in the country of refuge but prior of being recognized as a refugee.
According to Article 1F (c) acts contrary to the purposes and principles of the United Nations may also constitute a reason for exclusion. The purposes and principles of the United
25 Boeles–den Heijer et al. (2009): op. cit. 280.
26 Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines the crime of genocide as: a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; e) forcibly transferring children of the group to another group.
27 According to UNHCR Background Note on the Application of Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, para. 39 in determining the seriousness of the crime the following factors are relevant:
• the nature of the act;
• the actual harm inflicted;
• the form of procedure used to prosecute the crime;
• the nature of the penalty for such a crime;
• whether most jurisdictions would consider the act in question as a serious crime.
28 UNHCR Handbook, para. 155.
29 Ibid. para. 152.
30 Boeles–den Heijer et al. (2009): op. cit. 281.
Nations are laid down in Articles 1 and 2 of the United Nations Charter in a broad way.
Neither the drafters nor UNHCR give much guidance on what constitutes those purposes and principles that may be triggered when exclusion from international protection might be examined.31 As pointed out by Sarah Singer, several UN resolutions might be considered as forerunners of this provision, the Constitution of the International Refugee Constitution also included in its mandate those who had assisted enemy forces in the persecution of civilian populations or operations against the United Nations, and those who had participated in any organization hostile to the government of a member of the United Nations, or participated in any terrorist organization.32 However, terrorism did not explicitly appear in the wording of the Refugee Convention, later the EU Qualification Directive felt the necessity to make more clear the blurry provision of Article 1F (c): Acts contrary to the purposes and princi-ples of the United Nations are set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations and are, amongst others, embodied in the United Nations Resolutions relating to measures combating terrorism, which declare that “acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations” and that
“knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.”33
Given the unclear wording of Article 1F (c), it is not surprising that compared to Article 1F (a) and 1F (b), this article is applied very seldom. Article 1F (c) is applied only in extreme circumstances when the act affects the basis of the international community. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category. Analysing the United Nations Charter which sets out the acts and principles of the UN, it can be stated that only persons who have been in positions of power in a state or state-like entity would appear capable of committing such acts.34
With regard to the consequences of the exclusion, the Refugee Convention does not pose any obligation. The state may choose to allow the excluded individual to stay on its territory on other grounds but obligations under international law may ask the state to crim-inally prosecute or extradite the individual concerned. However, an excluded person may still be protected against return to a country where he or she is at risk of torture, inhuman or degrading treatment.35