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Background Note on the Application of the Exclusion Clauses: Article: 1F of the 1951 Convention relating
II. SUBSTANTIVE ANALYSIS
A. Article 1F(a) 8
B. Article 1F(b) 14
C. Article 1F(c) 17
D. Individual responsibility 19
E. Grounds for rejecting individual responsibility 25
F. Proportionality considerations 27
G. Applicability of Article 1F to particular acts 29
H. Special cases 34
III. PROCEDURAL ISSUES 36
1. The 1950 Statute of the United Nations High Commissioner for Refugees (hereinafter "the UNHCR Statute"), the 1951 Convention and 1967 Protocol relating to the Status of Refugees (hereinafter "the 1951 Convention") and the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (hereinafter "the OAU Convention") contain provisions for excluding from the benefits of refugee status certain persons who would otherwise qualify as refugees. These provisions are commonly referred to as the "exclusion clauses".
2. Events in the last decade, prompted in large part by the conflicts in the Great Lakes and the former Yugoslavia and their aftermath, have resulted in increased requests for clarification of the exclusion clauses. Recent anti-terrorism initiatives have further focused attention on these provisions. This Background Note provides a detailed analysis and review of the exclusion clauses, taking into account the practice of States, UNHCR and other relevant actors, UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status (hereinafter "the Handbook"), case law, the travaux préparatoires of the relevant international instruments, and the opinions of academic and expert commentators. It also draws on the constructive discussion of this topic at the May 2001 Expert Roundtable held in Lisbon, Portugal, as part of UNHCR's Global Consultations on International Protection (second track). It is hoped the information provided in this Background Note, along with the Guidelines on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, will facilitate the proper application of Article 1F of the 1951 Convention through a thorough treatment of the main issues. Obviously, each case must be considered on its own merit, bearing in mind the matters discussed below. As the Executive Committee of UNHCR recognised in Conclusion No. 82 (XLVIII), 1997, paragraph d(v), the exclusion clauses must be applied "scrupulously" to protect the integrity of the institution of asylum.
B. Objectives and general application
3. The rationale behind the exclusion clauses is twofold. Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice. While these underlying purposes must be borne in mind in interpreting the exclusion clauses, they must be viewed in the context of the overriding humanitarian objective of the 1951 Convention.
4. Consequently, as with any exception to human rights guarantees, the exclusion clauses must always be interpreted restrictively and should be used with great caution. As paragraph 149 of the Handbook emphasises, such an approach is particularly warranted in view of the serious possible consequences of exclusion for the individual. Moreover, the growth in universal jurisdiction and the introduction of international criminal tribunals reduces the role of exclusion as a means of ensuring fugitives face justice, thus reinforcing the arguments for a restrictive approach.
C. The exclusion clauses in the international refugee instruments
5. Paragraph 7(d) of the UNHCR Statute provides that the competence of the High Commissioner shall not extend to a person:
6. Article 1F of the 1951 Convention states that the provisions of that Convention "shall not apply to any person with respect to whom there are serious reasons for considering" that:
7. The grounds for exclusion are enumerated exhaustively in the 1951 Convention. While these grounds are subject to interpretation, they cannot be supplemented by additional criteria in the absence of an international convention to that effect. Article I(5) of the OAU Convention replicates the language contained in Article 1F of the 1951 Convention except for a reference to persons who have been "guilty of acts contrary to the purposes and principles of the Organization of African Unity". As the OAU Convention complements the 1951 Convention, the latter phrase should be read as subsumed within Article 1F(c) of the 1951 Convention, given the close connection between the OAU's and the UN's purposes.
8. The exclusion clauses found in Article 1F should be distinguished from Articles 1D and 1E of the 1951 Convention, as the latter deal with persons not in need, rather than undeserving, of international protection. Article 1D provides that the 1951 Convention shall not apply to persons receiving protection or assistance from organs or agencies of the United Nations other than UNHCR. They may, however, fall within the scope of the 1951 Convention in the event that "such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations". In such circumstances, consideration of exclusion pursuant to Article 1F may arise.
9. Under Article 1E, the 1951 Convention does not "apply to a person who is recognized by the competent authorities of the country in which he [or she] has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country". The object and purpose of this Article can be seen as excluding from refugee status those persons who do not require refugee protection because they already enjoy greater protection than that provided under the 1951 Convention in another country apart from the country of origin where they have regular or permanent residence and where they enjoy a status that is in effect akin to citizenship.
10. Moreover, Article 1F should not be confused with Article 33(2) of the 1951 Convention which provides that the benefit of the non-refoulement provision "may not ... be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country". Unlike Article 1F which is concerned with persons who are not eligible for refugee status, Article 33(2) is directed to those who have already been determined to be refugees. Articles 1F and 33(2) are thus distinct legal provisions serving very different purposes. Article 33(2) applies to refugees who become an extremely serious threat to the country of asylum due to the severity of crimes perpetrated by them. It aims to protect the safety of the country of refuge and hinges on the assessment that the refugee in question poses a major actual or future threat. For this reason, Article 33(2) has always been considered as a measure of last resort, taking precedence over and above criminal law sanctions and justified by the exceptional threat posed by the individual â€“ a threat such that it can only be countered by removing the person from the country of asylum.
E. Temporal scope
11. Whereas Article 1F(b) specifies that the crime in question must have been committed "outside the country of refuge prior to [the individual's] admission to that country as a refugee", the other exclusion clauses contain no temporal or territorial references. Given the serious nature of the crimes concerned, Articles 1F(a) and 1F(c) are therefore applicable at any time, whether the act in question took place in the country of refuge, country of origin or in a third country. Once such crimes are committed, the individual is excluded from refugee status. If the individual has already been recognised as a refugee, his or her status would need to be revoked.
12. The temporal aspect of the exclusion clauses remains the same in the case of refugees sur place (where the claim to refugee status flows from circumstances arising after departure from the country of origin). Thus, in order for Article 1F(a) and (c) to apply, the crime in question need not have taken place before the events giving rise to the refugee claim. Indeed, if a recognised refugee subsequently engages in conduct coming within the scope of Article 1F(a) or 1F(c), revocation of refugee status would be appropriate. By contrast, for Article 1F(b), only crimes committed outside the country of refuge prior to the person's admission to that country as a refugee are relevant.
F. Cancellation of refugee status (ex tunc)
13. General principles of administrative law allow for the cancellation of refugee status where it is subsequently revealed that the basis for such a decision was absent in the first place, either because the applicant did not meet the inclusion criteria or because one of the exclusion clauses would have applied at the time of decision-making had all the facts been known. Cancellation is, however, not related to a person's conduct post-determination. It is important therefore to differentiate between cancellation of refugee status on the basis of exclusion and expulsion or withdrawal of protection from non-refoulement under Articles 32 and 33(2) of the 1951 Convention. The former rectifies a mistaken grant of refugee status, while the latter provisions govern the treatment of those properly recognised as refugees.
14. Facts that would have justified exclusion may only become known after recognition of the individual as a refugee. Paragraph 141 of the Handbook states:
15. The erroneous decision may be due to fraud or misrepresentation regarding facts central to the refugee claim on the part of the applicant or may be attributable to the authorities (for example, inadequate decision-making). The act of cancellation corrects an administrative or judicial decision that was wrong ab initio by rescinding the original erroneous determination (from then or ex tunc). In such a scenario, the person is not and has never been a refugee. The prompt and transparent rectification of such errors is necessary to preserve the integrity of the refugee definition. Generalised suspicions about involvement in terrorist activity based solely on religious, ethnic or national origin, or political affiliation do not, however, justify a process of reviewing the grant of refugee status generally to entire groups of refugees.
16. There may be occasions when, after the exclusion of an individual, information comes to light which casts doubt on the applicability of the exclusion clauses. In such cases, the exclusion decision should be reconsidered and refugee status recognised if appropriate.
G. Revocation of refugee status (ex nunc)
17. In principle, refugees, including those recognised on a prima facie basis, must conform to the laws and regulations of the country of asylum as set out in Article 2 of the 1951 Convention and if they commit crimes are liable to criminal prosecution. The 1951 Convention foresees that such refugees can be subject to expulsion proceedings in accordance with Article 32 and, in exceptional cases, to removal under Article 33(2). Neither action per se involves revocation of refugee status. Where, however, a refugee engages in conduct coming within the scope of Article 1F(a) or 1F(c), for instance, through involvement in armed activities in the country of asylum, this would trigger the application of the exclusion clauses. In such cases, revocation of refugee status (from now or ex nunc) is appropriate, provided of course that all the criteria for the application of Article 1F(a) or 1F(c) are met.
H. Responsibility for determination of exclusion
18. Under the 1951 Convention and the OAU Convention, competence to decide whether a refugee claimant falls under the exclusion clauses lies with the State in whose territory the applicant seeks recognition as a refugee. Nevertheless, UNHCR has a responsibility under paragraph 8 of its Statute in conjunction with Article 35 of the 1951 Convention to help States that may require assistance in their exclusion determinations, and to supervise their practice in this regard.
19. As a matter of policy, UNHCR does not normally determine refugee status in countries that are party to the 1951 Convention/1967 Protocol. Determination of refugee status by States and determination of such status by UNHCR under its mandate are, however, not mutually exclusive. In some countries, for instance, UNHCR takes part in the national refugee status determination procedures. Given UNHCR's supervisory role, States are expected to pay due regard to UNHCR's interpretation of the relevant refugee instruments, whether in individual cases or on general issues. This Background Note intends to promote a common approach to the interpretation of the exclusion clauses, thus reducing the possibility of conflict between decisions made by different States and/or UNHCR.
20. The UNHCR Statute provides that the competence of the High Commissioner shall not extend to certain persons on similar (but not identical) grounds to those found in Article 1F of the 1951 Convention. Determinations of this nature clearly fall to UNHCR. Given that Article 1F represents a later and more specific formulation of the category of persons envisaged in paragraph 7(d) of the UNHCR Statute, the wording of Article 1F is considered more authoritative and takes precedence. UNHCR officials are therefore encouraged to apply the 1951 Convention formula in determining cases of exclusion.
I. Consequences of exclusion
21. Where the exclusion clauses apply, the individual cannot be recognised as a refugee and benefit from international protection under the 1951 Convention. Nor can the individual fall within UNHCR's mandate. The State concerned is not, however, obliged to expel him or her. Moreover, it may wish to exercise criminal jurisdiction over the individual, or indeed be under an obligation to extradite or prosecute the person concerned, depending on the nature of the offence committed. A decision by UNHCR to exclude a refugee means that that individual can no longer receive protection or assistance from the Office.
22. Despite being unable to access international protection under the 1951 Convention, an excluded individual is still entitled to be treated in a manner compatible with international law and, in particular, relevant human rights obligations. Although States enjoy a considerable degree of authority to expel aliens from their territory, there are a number of restrictions to this (as illustrated in Annex A). Thus, an excluded individual may still be protected against return by operation of other international instruments, notably Article 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 7 of the 1966 International Covenant on Civil and Political Rights, and/or Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.
II. SUBSTANTIVE ANALYSIS
A. ARTICLE 1F(a): CRIMES AGAINST PEACE, WAR CRIMES AND CRIMES AGAINST HUMANITY
23. Article 1F(a) refers to persons with respect to whom there are serious reasons for considering that they have 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". Several instruments exist today which define or elaborate on the notion of "crimes against peace, war crimes and crimes against humanity". Of continuing significance is the 1945 Charter of the International Military Tribunal (the London Charter), Article 6 of which is reproduced in the Handbook. The most recent international effort to define these crimes is found in the Statute of the International Criminal Court (ICC) adopted in June 1998 and in force since 1 July 2002. Its definitions of crimes against humanity, war crimes and crimes against peace will be further elaborated upon in Elements of Crimes to be adopted by State Parties to the ICC. Other relevant international legal instruments which may be used to interpret this exclusion clause are:
∑ the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention);
∑ the four 1949 Geneva Conventions for the Protection of Victims of War;
∑ the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid;
∑ the 1977 Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I);
∑ the 1977 Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II);
∑ the 1984 Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (the Convention against Torture);
∑ The Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the ICTY Statute);
∑ The Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 (the ICTR Statute).
24. Relevant non-binding but authoritative sources are the 1950 Report of the International Law Commission (ILC) to the General Assembly (including the Nuremberg Principles), the 1973 Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, and the Draft Code of Crimes against the Peace and Security of Mankind which was provisionally adopted by the ILC in 1996.
25. Article 1F(a) allows for a dynamic interpretation of the relevant crimes so as to take into account developments in international law. Although the ICC Statute represents the most recent attempt by the international community to define the relevant crimes, it should not be referred to exclusively when interpreting the scope of Article 1F(a) and the definitions used in other instruments must also be given due consideration. Nevertheless, the Statute and jurisprudence of the ICC may well become the principal sources for interpreting the crimes covered by Article 1F(a).
Crimes against peace
26. The London Charter remains the only international instrument to contain a definition of this crime. It considers a crime against peace to arise from the "planning, preparation, 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". Clearly, the adoption of a definition of the "crime of aggression" for the purposes of the ICC Statute (Article 5(1)(d) and (2)) will provide much needed clarity regarding the scope of this offence.
27. Although non-binding in nature, discussion of "aggression" in both the UN General Assembly and the ILC is of some interest. "Aggression" has been defined by the General Assembly as "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". Article 16 of the ILC's Draft Code of Crimes Against the Peace and Security of Mankind states: "An individual, who, as 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."
28. It is evident that crimes against peace can only be committed in the context of the planning or waging of a war or armed conflict. As wars or armed conflicts are only waged by States or State-like entities in the normal course of events, a crime against peace can only be committed by individuals in a high position of authority representing a State or State-like entity.
29. There are few precedents for exclusion of individuals under this category, (partly no doubt due to the paucity of international regulation in this area), and UNHCR is not aware of any jurisprudence dealing with crimes against peace as an exclusionary provision. Many acts that fall potentially within this concept may in any case also constitute war crimes and, indeed, crimes against humanity.
30. War crimes involve grave breaches of international humanitarian law (otherwise known as the law of armed conflict) and can be committed by, or perpetrated against, civilian as well as military persons. Attacks committed against any person not or no longer taking part in hostilities, such as wounded or sick combatants, prisoners of war, or civilians are regarded as war crimes. Although war crimes were originally considered to arise only in the context of an international armed conflict, it is now generally accepted that war crimes may be committed in non-international armed conflicts as well. This is reflected in both the jurisprudence of the ICTY and in the ICC Statute. An international armed conflict arises whenever the use of force is employed by one State against another. Determining the existence of a non-international armed conflict is often more complex. Internal disturbances and tensions, such as riots and other sporadic acts of violence, do not constitute a non-international armed conflict.
31. Article 8 of the ICC Statute sets out an extensive list of acts considered to be war crimes, but this list is not exhaustive, so recourse must also be made to other relevant instruments (set out in Annex B). Moreover, the forthcoming study by the International Committee of the Red Cross on customary rules of international humanitarian law will provide further guidance on the scope of those war crimes found in the above instruments which are derived from customary international law.
32. War crimes, whether in the context of international or non-international armed conflict, cover such acts as:
Crimes against humanity
33. Crimes against humanity involve the fundamentally inhumane treatment of the population in the context of a widespread or systematic attack against it. It is possible, however, for a single act to constitute both a crime against humanity and a war crime. While the London Charter and ICTY Statute refer to such crimes as being committed in time of international or non-international armed conflict, it is now accepted that crimes against humanity can also take place in peacetime. This development is confirmed by the ICC Statute, making this the broadest category under Article 1F(a).
34. The London Charter was the first international instrument to use the term "crimes against humanity" as a distinct category of international crimes. It has been further defined in the ICTY, ICTR and ICC Statutes (see Annex C). For example, Article 7 of the ICC Statute states that murder, extermination, enslavement, deportation or forcible transfer, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape and other forms of serious sexual violence, persecution, enforced disappearance, apartheid and other inhumane acts of a similar character, when such acts are committed as part of a widespread or systematic attack directed against any civilian population, constitute crimes against humanity.
35. Genocide is a particular crime against humanity and Article 6 of the ICC Statute replicates the definition found in Article II of the 1948 Genocide Convention:
36. The ICC Statute confirms that crimes against humanity are distinguishable from isolated offences or common crimes as they must form part of a widespread or systematic attack against the civilian population. In some cases, this may be the result of a policy of persecution or serious and systematic discrimination against a particular national, ethnic, racial or religious group. An inhumane act committed against an individual may constitute a crime against humanity if it is part of a coherent system or a series of systematic and repeated acts. Crimes against humanity may be identified from the nature of the acts in question, the extent of their effects, the knowledge of the perpetrator(s), and the context in which such acts take place.
B. ARTICLE 1F(b): SERIOUS NON-POLITICAL CRIMES
37. Article 1F(b) provides for the exclusion from refugee status of persons who have committed a "serious non-political crime" outside the country of refuge prior to being admitted to that country as a refugee. By contrast, both the Constitution of the International Refugee Organisation (IRO) and the UNHCR Statute refer to extraditable crimes in the context of exclusion. Similar language was not retained for the 1951 Convention, which instead describes the nature of the crime with greater precision. State practice in applying this provision has varied, although as noted by the Supreme Court of Canada, Article 1F(b) "contains a balancing mechanism in so far as the specific adjectives â€˜serious' and â€˜non-political' must be satisfied".
38. The term "serious crime" obviously has different connotations in different legal systems. It is evident that the drafters of the 1951 Convention did not intend to exclude individuals in need of international protection simply for committing minor crimes. Moreover, the gravity of the crime should be judged against international standards, not simply by its characterisation in the host State or country of origin. Indeed, the prohibition of activities guaranteed by international human rights law (for example, freedom of speech) should not be considered a "crime", much less one of a serious nature.
39. In determining the seriousness of the crime the following factors are relevant:
40. The guidance in the Handbook that a "serious" crime refers to a "capital crime or a very grave punishable act" should be read in the light of the factors listed above. Examples of "serious" crimes include murder, rape, arson and armed robbery. Certain other offences could also be deemed serious if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct and other similar factors. On the other hand, crimes such as petty theft or the possession for personal use of illicit narcotic substances would not meet the seriousness threshold of Article 1F(b).
44.41. State practice on the concept of "non-political" has been varied, with some jurisdictions following more closely the approaches used in extradition law. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. Thus, the motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. Egregious acts of violence, such as those commonly considered to be of a "terrorist" nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective.
44. Article 1F(b) also requires the crime to have been committed "outside the country of refuge prior to [the individual's] admission to that country as a refugee". The term "outside the country of refuge" would normally be the country of origin, but it could also be another country apart from the country of refuge. It cannot in principle be the country where the applicant seeks recognition as a refugee. Individuals who commit "serious non-political crimes" within the country of refuge are subject to that country's criminal law process, and in the case of particularly grave crimes to Articles 32 and 33(2) of the 1951 Convention; they do not fall within the scope of the exclusion clause under Article 1F(b). The logic of the Convention is thus that the type of crimes covered by Article 1F(b) committed after admission would be handled through rigorous domestic criminal law enforcement and/or the application of Article 32 and Article 33(2) where necessary.
44.46. Article 1F(c) excludes from international protection as refugees persons who have been "guilty of acts contrary to the purposes and principles of the United Nations". The purposes and principles of the United Nations are spelt out in Articles 1 and 2 of the UN Charter, although their broad, general terms offer little guidance as to the types of acts that would deprive a person of the benefits of refugee status. The travaux préparatoires are also of limited assistance, reflecting a lack of clarity in the formulation of this provision, but there is some indication that the intention was to cover violations of human rights which, although falling short of crimes against humanity, were nevertheless of a fairly exceptional nature. Indeed, as apparently foreseen by the drafters of the 1951 Convention, this provision has rarely been invoked. In many cases, Article 1F(a) or Article 1F(b) are likely to be applicable to the conduct in question. Given the vagueness of this provision, the lack of coherent State practice and the dangers of abuse, Article 1F(c) must be read narrowly.
52. Contemporary guidance on the nature of individual criminal responsibility can be found in the jurisprudence of the ICTY and ICTR, in particular in the ICTY judgment in the case of Kvocka et al (Omarska and Keraterm camps) where grounds for individual responsibility were discussed under four headings â€“ instigation, commission, aiding and abetting, and participation in a joint criminal enterprise. "Instigating" was described as the prompting of another person to commit an offence, with the intent to induce the commission of the crime or in the knowledge that there was a substantial likelihood that the commission of a crime would be a probable consequence. "Commission" of a crime, the most obvious form of culpability, was considered to arise from the physical perpetration of a crime or from engendering a culpable omission in violation of the criminal law, in the knowledge that there was a substantial likelihood that the commission of the crime would be the consequence of the particular conduct.
53. "Aiding or abetting" requires the individual to have rendered a substantial contribution to the commission of a crime in the knowledge that this will assist or facilitate the commission of the offence. The contribution may be in the form of practical assistance, encouragement or moral support and must have a substantial (but not necessarily causal) effect on the perpetration of the crime. Aiding or abetting may consist of an act or omission and may take place before, during or after the commission of the crime, although the requirement of a substantial contribution must always be borne in mind, especially when failure to act is in question. Thus, presence at the scene of a crime is not in itself conclusive of aiding or abetting, but it could give rise to such liability if such presence is shown to have had a significant legitimising or encouraging effect on the principal actor. This may often be the case where the individual present is a superior to those committing the crimes (although liability in such circumstances may also arise under the doctrine of command/superior responsibility, discussed below in paragraph 56).
54. Finally, the Trial Chamber in Kvocka et al considered liability arising from participation in a joint criminal enterprise (or common purpose), whether as a co-perpetrator or as an aider or abettor. A joint criminal enterprise exists wherever there is a plurality of persons, a common plan and participation of the individual in the execution of the common plan. The common plan need not be pre-arranged, however, it can arise extemporaneously and be inferred from the fact that a number of persons act together in order to put it into effect. Individual liability arises where the person concerned has "carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that his [or her] acts or omissions facilitated the crimes committed through the enterprise ...".
55. Whether the individual's contribution to the criminal enterprise is substantial or not depends on many factors, such as the size of the criminal enterprise, the functions performed, the position of the individual in the organisation or group, and (perhaps most importantly) the role of the individual in relation to the seriousness and the scope of the crimes committed.
56. Article 28 of the ICC Statute deals with the specific issue of command/superior responsibility. This provision states that a military commander is responsible for crimes committed by those under his or her effective control if she or he knew or, in the circumstances, ought to have known that his or her subordinates were committing or about to commit such crimes but he or she failed to take all necessary and reasonable measures within his or her power to prevent or repress such acts or to submit the matter to the competent authorities for investigation and prosecution. A similar responsibility is attributed to superiors outside the military context, but only where the crimes fall within his or her area of effective control and responsibility and where the superior either knew or consciously disregarded information that such crimes were about to take, or were taking, place.
Senior officials of repressive regimes
57. Given the principles set out above, the automatic exclusion of persons purely on the basis of their senior position in a government is not justified. "Guilt by association" judges a person on the basis of their title rather than their actual responsibilities or actions. Instead, an individual determination of responsibility is required for each official in order to ascertain whether the applicant knew of the acts committed or planned, tried to stop or oppose the acts, and/or deliberately removed him- or herself from the process. Moreover, consideration must be given as to whether the individual had a moral choice. Persons who are found to have performed, engaged in, participated in orchestrating, planning and/or implementing, or to have condoned or acquiesced in the carrying out of criminal acts by subordinates, should be excluded from refugee status.
58. Notwithstanding the above, a presumption of individual responsibility reversing the burden of proof may arise as a result of such a senior person's continued membership of a government (or part of it) clearly engaged in activities that fall within the scope of Article 1F. This would be the case, for example, where the government concerned has faced international condemnation (in particular from the UN Commission on Human Rights or the Office of the UN High Commissioner of Human Rights) for gross or systematic human rights abuses. Where the individual has remained in a senior government position despite such criticisms, exclusion may be justified, unless he or she can rebut the presumption of knowledge and personal involvement in such abuses.
Organisations which commit violent crimes or incite others to commit them
59. As with membership of a particular government, membership per se of an organisation that commits or incites others to carry out violent crimes is not necessarily decisive or sufficient to exclude a person from refugee status. The fact of membership does not, in and of itself, amount to participation in an excludable act. Consideration needs to be given to whether the applicant was personally involved in acts of violence or knowingly contributed in a substantial manner to such acts. A plausible explanation regarding the applicant's non-involvement or dissociation from any excludable acts, coupled with an absence of serious evidence to the contrary, should remove the applicant from the scope of the exclusion clauses.
60. Nevertheless, the purposes, activities and methods of some groups, sub-groups or organisations are of a particularly violent nature, for example where this involves indiscriminate killing or injury of the civilian population, or acts of torture. Where membership of such a group is voluntary, it raises a presumption that the individual concerned has somehow contributed significantly to the commission of violent crimes, even if this is simply by substantially assisting the organisation to continue to function effectively in pursuance of its aims. In such cases, the burden of proof is reversed. Membership may, in such cases, give rise to individual responsibility, for example, where the person concerned is in control of the funds of an organisation that he or she knows is dedicated to achieving its aims through violent crimes.
61. Caution must be exercised when such a presumption of responsibility arises. Care should be taken to consider the actual activities of the group, the organisation's place and role in the society in which it operates, its organisational structure, the individual's position in it, and his or her ability to influence significantly its activities. Regard must also be had to the possible fragmentation of certain organisations. In some cases, the group in question is unable to control acts of violence committed by militant wings. Unauthorised acts may also be carried out in the name of the group. Moreover, the nature of the group's violent conduct may have evolved, so the individual's membership must be examined in the context of the organisation's behaviour at the relevant time. Finally, defences to exclusion, such as duress, should be kept in mind.
62. Given the above, where an individual is associated with an organisation denounced as terrorist on a list drawn up by the international community (or, indeed, individual States) this does not mean exclusion is automatically justified. Rather, consideration of the applicability of the exclusion clauses is triggered. A presumption of individual responsibility may arise if the list has a credible basis and if the criteria for placing a particular organisation or individual on the list are such that all members or the listed person(s) can reasonably be considered to be individually involved in violent crimes.
63. Former members of military units should not necessarily be considered excludable, unless of course serious violations of international human rights law and international humanitarian law are reported and indicated in the individual case. Also, the fact that such individuals may initially have been subject to separation from the refugee population in mass influx situations should not be read as tantamount to a legal finding of exclusion. If ex-combatants have been involved in conflicts characterised by violations of international humanitarian law, the question of individual responsibility should be examined. This will raise similar issues to those discussed above in relation to members of organisations which commit violent crimes. It is, however, important to note that in many cases exclusion may not be relevant at all as the former combatant may not have a well-founded fear of persecution.
E. GROUNDS FOR REJECTING INDIVIDUAL RESPONSIBILITY
Lack of mental element (mens rea)
64. As reflected in Article 30 of the ICC Statute, criminal responsibility can normally only arise where the individual concerned committed the material elements of the offence with knowledge and intent. Where there is no such mental element (mens rea) a fundamental aspect of the criminal offence is missing and therefore no individual criminal responsibility arises. A person has intent where, in relation to conduct, the person means to engage in the conduct or, in relation to consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. Knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. Thus, for example, an individual who intended to commit the act of murder cannot be liable for a crime against humanity if he or she was unaware of an ongoing widespread or systematic attack against the civilian population. Such knowledge is a requisite component of the mental element of a crime against humanity. In such a case, the applicability of Article 1F(b) may be more appropriate.
65. In certain circumstances the individual may actually lack the mental capacity to be held responsible for a crime, for example, on the grounds of insanity, mental handicap, involuntary intoxication or, in the case of children, immaturity.
Defences to criminal liability
66. Regard should be had to general principles of criminal liability to determine whether a valid defence exists for the crime in question, as outlined in the examples below.
(i) Superior orders
67. A commonly-invoked defence is that of "superior orders" or coercion by higher governmental authorities, although it is an established principle of law that the defence of superior orders does not absolve individuals of blame. According to the Nuremberg Principles: "The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility under international law, provided a moral choice was in fact possible for him."
68. Article 7(4) of the ICTY Statute provides that "the fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility". Article 33 of the ICC Statute states that the defence of superior orders will only apply if the individual in question was under a legal obligation to obey the order in question, was unaware that the order was unlawful and the order itself was not manifestly unlawful (the latter being deemed so in all cases of genocide or crimes against humanity).
69. The defence of duress was often linked to that of superior orders during the post-Second World War trials. According to Article 31(d) of the ICC Statute, the defence of duress only applies if the incriminating act in question
70. Where duress is pleaded by an individual who acted on the command of other persons in an organisation, consideration should be given as to whether the individual could reasonably have been expected simply to renounce his or her membership, and indeed whether he or she should have done so earlier if it was clear that the situation in question would arise. Each case should be considered on its own facts. The consequences of desertion plus the forseeability of being put under pressure to commit certain acts are relevant factors.
(iii) Self-defence; defence of other persons or property
71. The use of reasonable and necessary force to defend oneself rules out criminal liability. Similarly, reasonable and proportionate action to defend another person or, in the case of war crimes, property which is essential for the survival of the person or another person or for accomplishing a military mission, against an imminent and unlawful use of force, may also provide a defence to criminal responsibility under certain circumstances (see, for example, Article 31(c) of the ICC Statute).
72. The exclusion clauses themselves are silent on the role of expiation, whether by serving a penal sentence, the grant of a pardon or amnesty, the lapse of time, or other rehabilitative measures. Paragraph 157 of the Handbook states that:
73. Bearing in mind the object and purpose behind Article 1F, it is arguable that an individual who has served a sentence should, in general, no longer be subject to the exclusion clause as he or she is not a fugitive from justice. Each case will require individual consideration, however, bearing in mind issues such as the passage of time since the commission of the offence, the seriousness of the offence, the age at which the crime was committed, the conduct of the individual since then, and whether the individual has expressed regret or renounced criminal activities. In the case of truly heinous crimes, it may be considered that such persons are still undeserving of international refugee protection and the exclusion clauses should still apply. This is more likely to be the case for crimes under Article 1F(a) or (c), than those falling under Article 1F(b).
74. As for lapse of time, this in itself would not seem good grounds for setting aside the exclusion clauses, particularly in the case of crimes generally considered not subject to a statute of limitation. A case by case approach is necessary once again, however, taking into account the actual period of time that has elapsed, the seriousness of the offence and whether the individual has expressed regret or renounced criminal activities.
75. The effect of pardons and amnesties also raises difficult issues. Although there is a trend in some regions towards ending impunity for those who have committed serious violations of human rights, this has not become a widely accepted practice. In considering the impact on Article 1F, consideration should be given as to whether the pardon or amnesty in question is an expression of the democratic will of the relevant country and whether the individual has been held accountable in other ways (e.g. through a Truth and Reconciliation Commission). In some cases, a crime may be of such a heinous nature that the application of Article 1F is still considered justified despite the existence of a pardon or amnesty.
F. PROPORTIONALITY CONSIDERATIONS
76. The incorporation of a proportionality test when considering exclusion and its consequences provides a useful analytical tool to ensure that the exclusion clauses are applied in a manner consistent with the overriding humanitarian object and purpose of the 1951 Convention. State practice on this issue is not, however, uniform with courts in some States rejecting such an approach, generally in the knowledge that other human rights protection mechanisms will apply to the individual, while others take account of proportionality considerations.
77. In UNHCR's view, consideration of proportionality is an important safeguard in the application of Article 1F. The concept of proportionality, while not expressly mentioned in the 1951 Convention or the travaux préparatoires, has evolved in particular in relation to Article 1F(b), since it contains a balancing test in so far as the specific terms "serious" and "non-political" must be satisfied. More generally, it represents a fundamental principle of international human rights law and international humanitarian law. Indeed, the concept runs through many fields of international law. As with any exception to a human rights guarantee, the exclusion clauses must therefore be applied in a manner proportionate to their objective, especially bearing in mind that a decision leading to exclusion does not equate with a full criminal trial and that human rights guarantees may not represent an accessible "safety valve" in some States.
78. In reaching a decision on exclusion, it is therefore necessary to weigh up the gravity of the offence for which the individual appears to be responsible against the possible consequences of the person being excluded, including notably the degree of persecution feared. If the applicant is likely to face severe persecution, the crime in question must be very serious in order to exclude the applicant. This being said, such a proportionality analysis would normally not be required in the case of crimes against peace, crimes against humanity, and acts contrary to the purposes and principles of the United Nations, as the acts covered are so heinous that they will tend always to outweigh the degree of persecution feared. By contrast, war crimes and serious non-political crimes cover a wider range of behaviour. For those activities which fall at the lower end of the scale, for example, isolated incidents of looting by soldiers, exclusion may be considered disproportionate if subsequent return is likely to lead, for example, to the individual's torture in his or her country of origin. Where, however, persons have intentionally caused death or serious injury to civilians as a means of intimidating a government or a civilian population, they are unlikely to benefit from proportionality considerations.
G. APPLICABILITY OF ARTICLE 1F TO PARTICULAR ACTS
79. There is, as yet, no internationally accepted legal definition of terrorism. The final report of the International Law Commission on the Draft Code of Crimes against the Peace and Security of Mankind did not include a crime of "terrorism", nor do the ICC Statute or recent Security Council Resolutions concerning action to combat terrorism in the face of the attacks in the United States on 11 September 2001. Negotiations continue on a draft UN Comprehensive Convention on International Terrorism. At the regional level, however, the December 2001 European Union Common Position on the Application of Specific Measures to Combat Terrorism attempts to provide a general definition of terrorist acts. In the continuing absence of a universally accepted definition of terrorism, the focus has been on prohibiting specific acts that are condemned by the entire international community, irrespective of the motive behind them. There are currently some twenty global or regional treaties pertaining to international terrorism, although not all of them are in force.
80. In many cases, consideration of the exclusion clauses will not be necessary in relation to terrorist suspects as their fear will be of legitimate prosecution for criminal acts as opposed to persecution for a 1951 Convention reason. Where an individual has committed terrorist acts as defined within the international instruments mentioned in Annex D and a risk of persecution is at issue, the person may be excludable from refugee status. In these circumstances, the basis for exclusion under Article 1F will depend on the act in question and all surrounding circumstances. In each and every case, individual responsibility must be established, that is, the individual must have committed the act of terrorism or knowingly made a substantial contribution to it. This remains the case even when membership of the organisation in question is itself unlawful in the country of origin or refuge. The fact that an individual may be on a list of terrorist suspects or associated with a proscribed terrorist organisation should trigger consideration of the exclusion clauses. Depending on the organisation, exclusion may be presumed but it does not mean exclusion is inevitable.
81. In many such cases, it is Article 1F(b) that will apply as violent acts of terrorism are likely to fail the predominance test used to determine whether the crime is political. Moreover, if one of the international treaties mentioned in Annex D has abolished the political offence exemption in relation to extradition for the act in question, this would suggest that the crime is non-political for the purposes of Article 1F(b). It is not, however, a case of deeming all terrorist acts to be non-political but of judging the individual act in question against the Article 1F(b) criteria.
82. Moreover, although providing funds to "terrorist groups" is generally a criminal offence, (and indeed instruments such as the 1999 International Convention for the Suppression of Financing of Terrorism require this), such activities may not necessarily reach the gravity required to fall under Article 1F(b). The particulars of the specific crime need to be looked at â€“ if the amounts concerned are small and given on a sporadic basis, the offence may not meet the required level of seriousness. On the other hand, a regular contributor of large sums to a terrorist organisation may well be guilty of a serious non-political crime. Apart from constituting an excludable crime in itself, financing may also lead to individual responsibility for other terrorist crimes. For example, where a person has consistently provided large sums to a group in full knowledge of its violent aims, that person may be considered to be liable for violent acts carried out by the group as his or her monetary assistance has substantially contributed to such activities. Factors leading to individual responsibility in such circumstances are discussed in paragraphs 50â€“56 above.
83. Although Article 1F(b) is of most relevance in connection with terrorism, in certain circumstances a terrorist act may well fall within Article 1F(a), for example as a crime against humanity. In exceptional circumstances, the leaders of terrorist organisations carrying out particularly heinous acts of international terrorism which involve serious threats to international peace and security may be considered to fall within the scope of Article 1F(c).
84. In the international community's efforts to combat acts of terrorism it is important that unwarranted associations between terrorists and refugees/asylum-seekers are avoided. Moreover, definitions of terrorist crimes adopted on the international, regional and national level will need to be extremely precise to ensure that the "terrorist" label is not abused for political ends, for example to prohibit the legitimate activities of political opponents. Such definitions may influence the interpretation of the exclusion clauses and, if distorted for political ends, could lead to the improper exclusion of certain individuals. Indeed, unwarranted applications of the "terrorist" label could trigger recriminations amounting to persecution against an individual.
85. Hijacking is an internationally condemned act as reflected by a number of the treaties listed in Annex D, but an act of hijacking does not automatically exclude the perpetrator from refugee status. Rather, it requires consideration of the exclusion clauses, notably Article 1F(b), in the light of the particular circumstances of the case. It is evident that hijacking poses a grave threat to the life and safety of innocent passengers and crew. It is for this reason that there is so much opprobrium attached to acts of hijacking. Thus, acts of hijacking will almost certainly qualify as "serious" crimes and the threshold for the proportionality test will be extremely high â€“ only the most compelling circumstances can justify non-exclusion for hijacking.
86. Among issues requiring consideration are the following:
87. The prohibition against torture, found in many treaties, is now considered part of customary international law. Article 1 of the key human rights treaty on this matter, the 1984 Convention against Torture, defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" for certain purposes when "such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". Thus, to qualify as torture in the context of this Convention, an act must have been carried out with the involvement of a person acting in an official, rather than a private, capacity. Torture may take many forms, including the carrying out of medical or scientific experiments on individuals who have not given their consent.
88. Where acts of torture are part of a systematic attack against the civilian population, this could constitute a crime against humanity under Article 1F(a) of the 1951 Convention. This is explicitly recognised in the ICTY, ICTR and ICC Statutes. It is worth noting that by including torture among the elements of the crime against humanity listed in the ICC Statute, the latter does not seem to envisage that the perpetrator has to be acting in an official role or for a specific purpose. Isolated acts of torture could constitute a serious non-political crime (under Article 1F(b)).
89. Torture may also constitute a war crime under Article 1F(a). The ICTY Tribunal has stated that, in the context of international humanitarian law (unlike in international human rights law), the act of torture need not be committed by a State official or any other person wielding authority. It has also found that the list of prohibited purposes set out in Article 1 of the Convention against Torture is not exhaustive, but merely indicative.
Emerging crimes under international law
H. SPECIAL CASES
91. In principle, the exclusion clauses can apply to minors but only if they have reached the age of criminal responsibility. Great caution should always be exercised, however, when the application of the exclusion clauses is being considered in relation to a minor. Under Article 40 of the 1989 Convention on the Rights of the Child, States shall seek to establish a minimum age for criminal responsibility. Where this has been established in the host State, a child below the minimum age cannot be considered by the State concerned as having committed an excludable offence. For those over this age limit (or where no such limit exists), the maturity of the particular child should still be evaluated to determine whether he or she had the mental capacity to held responsible for the crime in question. The younger the child, the greater the presumption that such mental capacity did not exist at the relevant time.
92. Where mental capacity is established, particular attention must be given to whether other grounds exist for rejecting criminal liability, including consideration of the following factors: the age of the claimant at the time of becoming involved with the armed group; the reasons for joining (was it voluntary or coerced or in defence of oneself or others?); the consequences of refusal to join; the length of time as a member; the possibility of not participating in such acts or of escape; the forced use of drugs, alcohol or medication (involuntary intoxication); promotion within the ranks of the group due to actions undertaken; the level of education and understanding of the events in question; and the trauma, abuse or ill-treatment suffered by the child as a result of his or her involvement. In the case of child soldiers, in particular, questions of duress, defence of self and others, and involuntary intoxication, often arise. Even if no defence is established, the vulnerability of the child, especially those subject to ill-treatment, should arguably be taken into account when considering the proportionality of exclusion for war crimes or serious non-political crimes.
93. At all times, regard should be had to the overwhelming obligation to act in the "best interests" of the child in accordance with the 1989 Convention on the Rights of the Child. Thus, specially trained staff should deal with cases where exclusion is being considered in respect of a child applicant. In the UNHCR context, all such cases should be referred to Headquarters before a final decision is made on exclusion. The "best interests" principle should also underlie any post-exclusion action. Articles 39 and 40 of the 1989 Convention are also relevant as they deal with the duty of States to assist in the rehabilitation of "victims" (which would tend to include child soldiers) and set down standards for the treatment of children thought to have infringed the criminal law.
94. The right to family unity generally operates in favour of dependants and not against them. Thus, where the main applicant is excluded, family members are not automatically excluded as well. Their claims to refugee status would need to be determined on an individual basis. Such claims are valid even where the fear of persecution is a result of the relationship to the excluded relative. Family members are only excluded if there are serious reasons for considering that they too are individually responsible for excludable crimes.
95. Where family members have been recognised as refugees, however, the excluded applicant cannot then rely on the right to family unity to secure protection or assistance as a refugee.
96. As a matter of principle, the exclusion clauses apply in situations of mass influx. From a practical perspective, however, an individual assessment may not be possible at an early stage in such circumstances. This does not mean that group exclusion is justified. Rather, humanitarian principles require that protection and assistance be afforded to all persons until such time as individual refugee status determination can take place. This is subject, though, to the separation of armed elements from the civilian population where mixed flows take place. Suspected armed elements should be interned in a location away from the refugee camp and should not automatically benefit from a prima facie determination of refugee status. They should not be considered as asylum-seekers until the authorities have established within a reasonable time-frame that they have genuinely renounced military activities. Only once this has been determined should a claim to refugee status, including consideration of exclusion, be examined on an individual case-by-case basis. Exclusion should not be assumed for such persons â€“ each case must be looked at on its own facts.
97. It is clear that the operational and logistical difficulties surrounding individual status determination in the mass influx context mean that without substantial assistance from the international community such a task is extremely problematic. In particular, the separation and disarming of armed elements is not within UNHCR's mandate and requires a concerted effort by the host government often acting with international assistance.
III. PROCEDURAL ISSUES
A. Fairness of procedure
98. Given the severe consequences of exclusion for an individual and its exceptional nature, it is essential that rigorous procedural safeguards in relation to this issue are built into the refugee status determination procedure. Reference should be made to the procedural safeguards considered necessary in refugee status determination in general. These include:
B. Consideration of exclusion in the context of refugee status determination
99. In principle, in particular given the exceptional nature of the exclusion clauses, the applicability of the exclusion clauses should be examined within the regular refugee status determination procedure and not in either admissibility or accelerated procedures. Seeking to determine exclusion at the admissibility stage risks unfairly associating asylum-seekers with criminality. Rather, consideration of exclusion issues in the regular procedure allows the reasons justifying refugee status to be assessed alongside the factors pointing towards exclusion. This holistic approach facilitates a full assessment of the factual and legal issues of the case and is necessary in exclusion cases, which are often complex, require an evaluation of the nature of the alleged crime and the applicant's role in it on the one hand, and of the nature of the persecution feared on the other. This is particularly so where proportionality considerations arise (see paragraphs 76â€“78 above).
100. The exceptional nature of Article 1F suggests that inclusion should generally be considered before exclusion, but there is no rigid formula. The holistic approach allows for flexibility, taking into account the nature of the particular case. For example, looking at inclusion before exclusion may often be helpful as it prevents unnecessary consideration of Article 1F in cases where non-inclusion arises. In cases of suspected terrorists, this would allow for an initial determination as to whether the individual fears legitimate criminal prosecution (and is therefore ineligible for refugee status anyway) as opposed to persecution. Inclusion before exclusion also enables a fuller understanding of the circumstances and international protection concerns about family members to be addressed. Exclusion may exceptionally be considered without particular reference to inclusion issues (i) where there is an indictment by an international criminal tribunal; (ii) in cases where there is apparent and readily available evidence pointing strongly towards the applicant's involvement in particularly serious crimes, notably in prominent Article 1F(c) cases, and (iii) at the appeal stage in cases where exclusion is the question at issue.
C. Specialised exclusion units
101. States have a legitimate interest in determining excludability as swiftly as possible, particularly in the case of suspected terrorists. This is not incompatible with undertaking a substantive factual and legal assessment. UNHCR recommends that exclusion cases be dealt with by specialised exclusion units within the institution responsible for refugee status determination, which would consider such cases on an expedited basis. Staff in these units should have expertise in both international criminal and refugee law as well as access to up-to-date background information, for example, briefings on key terrorist organisations, country of origin information, etc. Such units would maintain clear communication links with intelligence services and criminal law enforcement agencies.
D. Deferral for criminal proceedings
102. Where the individual is wanted by national courts for domestic criminal or extradition proceedings, it may be prudent to defer examination of the asylum application (including applicability of the exclusion clauses) until completion of such judicial proceedings. The latter may have significant implications for the asylum claim, although there is not necessarily an automatic correlation between extradition and exclusion under Article 1F. In general, however, the refugee claim must be determined in a final decision before execution of any extradition order. This is not the case for surrender to an international criminal tribunal, since such surrender does not place the individual at risk of persecution.
E. Confidentiality of asylum claim
103. Consideration of the exclusion clauses may lead to the sharing of data about a particular asylum application with other States, for example, to gather intelligence on an individual's suspected terrorist activities. In line with established principles, information on asylum-seekers, including the very fact that they have made an asylum application, should not be shared with the country of origin as this may place such persons, their families, friends or associates at risk. In exceptional circumstances, where national security interests are at stake, contact with the country of origin may be justified. For example, this may be the only method by which to obtain concrete evidence about an individual's previous and potentially ongoing terrorist activities. Even in such situations, the existence of the asylum application should still remain confidential.
104. The principle of confidentiality continues in principle to apply even when a final determination of exclusion has been made. This is necessary to preserve the integrity of the asylum system â€“ information given on the basis of confidentiality must remain protected.
F. Burden of proof
105. In asylum procedures generally, the burden of proof is shared between the applicant and the State (reflecting the vulnerability of the individual in this context). As several jurisdictions have explicitly recognised, however, the burden shifts to the State to justify exclusion under Article 1F. This is consistent with the exceptional nature of the exclusion clauses and the general legal principle that the person wishing to establish an issue should bear the burden of proof. Moreover, the factors that justify the individual being given the benefit of the doubt in refugee status determination proceedings generally apply equally when exclusion is being considered.
106. In some instances, the burden of proof may be reversed, creating a rebuttable presumption of excludability. This is arguably the case where the individual has been indicted by an international criminal tribunal. It would then be up to the individual to rebut the presumption by proving, for example, mistaken identity. In the context of action against terrorism, lists established by the international community of terrorist suspects and organisations should not generally be treated as reversing the burden of proof. Unlike ICTY/ICTR indictments, such lists would be drawn up in a political, rather than a judicial, process and so the evidentiary threshold for inclusion is likely to be much lower. Moreover, the criteria for inclusion on a list may be much broader than those relevant to the test for exclusion under Article 1F. By contrast, an indictment by an international criminal tribunal will generally be in relation to activity caught by Article 1F, particularly under subparagraph (a). Terrorist lists are discussed further below in paragraph 109.
G. Standard of proof
107. The standard of proof set out in Article 1F â€“ "serious reasons for considering" â€“ is not a familiar concept in domestic legal systems. State practice is not consistent on this matter but does, at least, make it clear that the criminal standard of proof (e.g. beyond reasonable doubt in common law systems) need not be met. Thus, exclusion does not require a determination of guilt in the criminal justice sense. Nevertheless, in order to ensure that Article 1F is applied in a manner consistent with the overall humanitarian objective of the 1951 Convention, the standard of proof should be high enough to ensure that bona fide refugees are not excluded erroneously. Hence, the "balance of probabilities" is too low a threshold. As found in civil law jurisdictions, serious reasons from which arise a substantial suspicion are at least what is necessary; simple suspicions are not sufficient. General reference to the standard of evidence required for an indictment is in itself unhelpful, as this standard varies between jurisdictions. Given the rigorous manner in which indictments are put together by international criminal tribunals, however, indictment by such bodies, in UNHCR's view, satisfies the standard of proof required by Article 1F. Depending on the legal system, this may also be the case for certain individual indictments.
108. It would appear that clear and credible evidence of involvement in excludable acts is required to satisfy the "serious reasons" test in Article 1F. An applicant's confession of involvement in such acts could satisfy the evidentiary test, but the credibility of such a confession would need to be examined, particularly if it was made in the country of origin where the applicant may have been subject to coercion. Again, the applicant's conviction for an excludable offence could be sufficient evidence for exclusion, if the conviction appears to have been reliable. An assessment of the fairness of the criminal proceedings is required, taking into account the relevant country's adherence to international standards on criminal justice. Similarly, the fact that an individual has been indicted in a foreign jurisdiction (rather than by an international criminal tribunal) or is subject to an extradition request should not automatically be considered sufficient evidence for exclusion. In all cases, proper recourse must be made to accurate country of origin information, for example, to evaluate whether a confession made in a criminal investigation is reliable.
109. Credible testimony of witnesses or other sources of reliable information set against the applicant's own statements (including an assessment of their credibility) may also provide sufficient evidence for the purposes of exclusion under Article 1F. With regard to the latter, an individual's inclusion on an international list of terrorist suspects should trigger consideration of the exclusion clauses but does not in itself satisfy the "serious reasons" test. As discussed in paragraph 106 above, this is due to the evidentiary and substantive criteria governing such lists. Similarly, where international lists are drawn up of terrorist organisations and an individual appears to be associated with such a group, this should prompt consideration of the applicability of the exclusion clauses. Exceptionally, where the criteria governing the list are such that the designated organisations, including its members, can reliably be considered to be heavily involved in violent crime, a presumption of individual responsibility for an excludable act may arise, but as discussed in paragraphs 57 and 58 above this should be analysed carefully. National lists of terrorist suspects or organisations will tend to have a lower evidentiary value than their international counterparts, due to the lack of international consensus.
110. When a rebuttable presumption does arise, the standard of proof to be met by the applicant to rebut the presumption is that of a plausible explanation regarding non-involvement or dissociation from any excludable acts, coupled with an absence of serious evidence to the contrary.
111. In establishing whether the standard of proof has been met in a particular case, lack of cooperation by the individual concerned may raise difficulties, although non-cooperation in itself does not establish guilt in the absence of clear and credible evidence of individual responsibility. On the other hand, an applicant's refusal to cooperate with the determination procedure may lead to non-inclusion in some cases. It should also not be a bar to establishing that sufficient evidence, as outlined in paragraphs 105 and 106, exists for Article 1F to apply. Nevertheless, it is always important to assess the reasons for the individual's non-cooperation as it may be due to problems of understanding (for example, due to poor interpretation), to trauma, mental capacity, fear, or other factors.
H. Sensitive evidence
112. Exclusion should not be based on evidence that the individual concerned does not have the opportunity to challenge, as this offends principles of fairness and natural justice. Nevertheless, where revealing the source and/or the substance of the evidence may put witnesses at risk or compromise national security interests, a conflict arises with the full disclosure principle.
113. Exceptionally, anonymous evidence (where the source is concealed) may be relied upon but only where this is absolutely necessary to protect the safety of witnesses and the asylum-seeker's ability to challenge the substance of the evidence is not substantially prejudiced. Secret evidence or evidence considered in camera (where the substance is also concealed) should not be relied upon to exclude. The desire to withhold the nature of certain evidence will tend to arise where national security interests are at stake, but such interests may be protected by introducing procedural safeguards which also respect the asylum-seeker's due process rights. For example, consideration should be given to disclosing the general content of the sensitive material to the individual but reserving the details for his or her legal representative only (on the basis that the latter has been vetted to received such evidence). Moreover, the exclusion decision, including the fairness of relying on such partially-disclosed material, could be challenged in private hearings before an independent tribunal (which has access to all relevant evidence).
ANNEX A: Consequences of exclusion
Some of the legal considerations constraining States' powers of expulsion include:
· Article 3(1) of the 1984 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment provides: "No State Party shall expel, return (â€˜refouler') or extradite a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture."
· Article 7 of the 1966 International Covenant on Civil and Political Rights states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishmentâ€¦"
· Article 22(8) of the 1969 American Convention on Human Rights provides: "In no case may an alien be deported or returned to a country, regardless of whether or not it is his [or her] country of origin, if in that country his [or her] right to life or personal freedom is in danger of being violated because of his [or her] race, nationality, religion, social status, or political opinions."
· Article 37(a) of the 1989 Convention on the Rights of the Child provides: States Parties shall ensure that: No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishmentâ€¦"
· Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The established case law of the European Court of Human Rights has determined that the expulsion or extradition of a person to a country where he or she risks being subjected to such treatment violates Article 3.
· The return of a person to face the death penalty may be prohibited under applicable international human rights law, either as a form of inhuman and degrading treatment or because the host State has abolished the use of the death penalty. At the regional level, the 2003 Protocol to the Protocol amending the 1977 European Convention on the Suppression of Terrorism, adds to Article 5 of the latter Convention the statement: "Nothing in this Convention shall be interpreted either as imposing on the requested State an obligation to extradite if the person subject of the extradition request risks being exposed to the death penalty or â€¦ to life imprisonment without the possibility of parole..."
· Several international instruments embody the principle that no alien who is lawfully present in the territory of a State (or, as the case may be, no alien coming under the specific category covered by the instrument) may be expelled except in pursuance of a decision reached in accordance with the law. Some of these instruments provide that such an alien may not be expelled except on grounds of national security or public order.
· Various international instruments enshrine the principle that the collective expulsion of aliens is prohibited. In addition, the principle that an expulsion must be carried out in a manner least injurious to the person affected was well established by the beginning of the century.
· Extradition treaties often include a non-persecution clause, which prevents the surrender of an individual where this would put him or her at risk of persecution (as opposed to legitimate prosecution).
Article 6(b) of the London Charter includes within the concept of war crimes murder or ill-treatment of civilian populations, murder or ill-treatment of prisoners of war, the killing of hostages, or any wanton destruction of cities, towns or villages or devastation that is not justified by military necessity.
The "grave breaches" specified in the 1949 Geneva Conventions and Article 85 of Additional Protocol I also constitute war crimes. These include wilful killing, torture or other inhuman treatment, wilfully causing great suffering or serious injury to body or health, of protected persons; attacks on, or indiscriminate attack affecting the civilian population or those known to be hors de combat, population transfers; practices of apartheid and other inhuman and degrading practices involving outrages on personal dignity based on racial discrimination; and attacking non-defended localities and demilitarised zones. "Grave breaches" take place in the context of international armed conflicts.
Articles 2 and 3 of the ICTY Statute cover grave breaches of the 1949 Geneva Conventions and violations of the laws and customs of war. In relation to international armed conflicts, the crimes covered include wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, of protected persons; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or a civilian to serve in the forces of a hostile power; wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement of a civilian; and taking civilians as hostages. In relation to internal armed conflicts, war crimes are considered to arise from violations of common Article 3 of the 1949 Geneva Conventions, which deals with the basic humanitarian principles applicable in all armed conflicts. These include murder, the taking of hostages and outrages on personal dignity of persons not taking an active part in the hostilities. Article 4 of the ICTR Statute defines war crimes by reference to serious violations of common Article 3 of the 1949 Geneva Conventions and Additional Protocol II (both of which deal with non-international armed conflicts).
Amongst the acts designated as war crimes by Article 8 of the ICC Statute are intentional attacks against the civilian population or objects; intentional attacks against humanitarian personnel; killing or wounding a combatant who has surrendered; employing prohibited weapons (such as poisonous gases); committing rape and other forms of sexual violence; using starvation as a method of warfare; and conscripting children under the age of fifteen years. Differentiation is made in the Statute between acts constituting war crimes in the context of an international armed conflict and those arising in non-international armed conflicts.
Article 6(c) of the London Charter defines crimes against humanity as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Article 5 of the ICTY Statute defines its responsibility for crimes against humanity as encompassing murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts when committed in armed conflict and directed against any civilian population.
Article 3 of the ICTR Statute refers to crimes committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds and lists the same crimes as Article 5 of the ICTY Statute.
The relevant ICC Statute provisions are set out in paragraph 36 above.
1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft (in force 4 December 1969)
1971 Organisation of American States Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance (in force 16 October 1973) (see http://www.oas.org/ )
2001, 27 December, Council Regulation (2001/2580/EC) on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, Official Journal L 344/70, 28 December 2001