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War Crimes and Refugee Status Research Workshop

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Refugee law adjudication is reputed to be amongst the most difficult forms of judicial and quasi-judicial decision-making.  This is due to a number of factors, including: “the lack of corroborating evidence, the interpreted testimony, the cross-cultural issues.”(*)  Moreover, refugee law adjudicators are required to deal with highly difficult and complex areas of public international law.  This is most clearly evident when issues involving exclusion are raised in an application for Convention or Mandate refugee status.

The 1951 Convention relating to the Status of Refugees consists of a Preamble, seven Chapters with 46 Articles, a Schedule with 16 Paragraphs, and an Annex with a Specimen Travel Document.(**)  The 1951 Convention can be divided broadly into its inclusionary and exclusionary portions.  The inclusionary portions define who is a Convention refugee and the exclusionary portions define who ought to be excluded from Convention refugee status, even though, otherwise, they would qualify for Convention refugee status.

Article 1F of the 1951 Convention states as follows:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

  1. 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;

  2. he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

  3. he has been guilty of acts contrary to the purposes and principles of the United Nations.(***)

Hence, Convention or Mandate refugee status(****) is not available to those who are guilty (or for whom there are serious reasons for considering that they are guilty) of war crimes, crimes against peace, and crimes against humanity.  Article 1F, the so-called “exclusion” clause of the 1951 Convention, requires decision-makers to determine not only whether an applicant for refugee status meets the refugee definition, but also whether he or she may have committed violations of international humanitarian law (IHL) or international criminal law (ICL).

The aim of this research project, an international collaborative and comparative effort, is to assess whether and how IHL and ICL are applied to the adjudication of claims for refugee status where exclusion is raised as an issue.  The research project will focus on five common law countries, including: Canada, the United States, the United Kingdom, Australia, and New Zealand. 

The lack of an international refugee court to provide authoritative interpretations of the 1951 Convention and its 1967 Protocol, binding on all States parties, makes it evident that an international collaborative comparative research project examining the jurisprudence of a number of leading refugee receiving States is required to achieve verifiable and reliable research findings and conclusions.  Accordingly, the “War Crimes and Refugee Status” research project will look at refugee law decisions from these five common law jurisdictions.  Indeed, the courts and tribunals from these five common law jurisdictions provide the vast majority of all refugee-related jurisprudence.

The principal objectives of the “War Crimes and Refugee Status” research project are to:

  1. Determine whether judges and decision-makers cite to treaty provisions of or case law on IHL and ICL in deciding cases where exclusion is an issue in a claim for Convention refugee status.

  2. Assess whether judges and decision-makers refer to the IHL or ICL via their incorporation in UNHCR guidelines and directives.

  3. Explore whether there is a common understanding across these States as to the meaning of IHL and ICL provisions relevant to refugee status determination.

The “War Crimes and Refugee Status” research project will also be addressing inconsistencies in asylum adjudication and, more generally, the fragmentation of international refugee law and IHL and ICL between and among various national jurisdictions given the absence of an international refugee court or other authoritative expert treaty body.   There has not been any sustained international research effort to assess if and how these companion bodies of public international law have been incorporated into States’ understanding of their refugee protection obligations.  Accordingly, the “War Crimes and Refugee Status” research project will be breaking new ground in this regard.


* Immigration and Refugee Board of Canada, GIC Members, Expectations/Challenges of IRB Members. (Accessed May 4, 2010)

** Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reedited, Geneva, January, 1992., pp. 57-80.

*** Ibid., p. 60.

**** The Statute of the Office of the High Commissioner for Refugees 428(V), Chapter II Functions of the High Commissioner at Section 7 states: “Provided that the competence of the High Commissioner as defined in paragraph 6 above shall not extend to a person: (d) In respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.(See resolution 217 A (III).)” (Accessed May 5, 2010)