Looking to Human Rights and Humanitarian Law to Determine Refugee Status

Abstract

The definition of refugee in law is famously vague. Two particularly challenging elements are the nature of and the scope of involvement in a crime against peace, war crime, or crime against humanity, as defined in [...] instruments (1) such that an otherwise eligible refugee would be excluded from protection. Given that asylum adjudicators have had over sixty years of experience in interpreting the 1951 Refugee Convention definition, now governing in the 148 states parties to the Convention and/or its 1967 Protocol, there should be ample opportunities for comparative analysis and judicial conversation. Outside the confines of the Convention itself, the evolution of human rights law since 1951 and the explosive growth in humanitarian law and criminal law since the mid-1990s have created rich environment for situating the refugee definition in more comprehensive law context. Some jurisdictions have interpreted persecution using the language of human rights, while others have developed what might be characterized as more inward-looking, refugee-specific, sense of the word. Similarly, some jurisdictions have indeed looked to international instruments to inform their understanding of exclusion for war crimes and related offenses, while others have based their exclusion analysis on other factors. The United States has taken different direction, by excluding those who persecute others, with the result that persecution for the purposes of exclusion is mirror image of persecution as defined for the purposes of inclusion. My work looks at the use, or lack thereof, of and comparative law in refugee status determination, and explores the consequences for coherence and consistency in protection. To the extent that law is taken into account in refugee status determination, it is generally regarded as positive development. It may feel intuitively correct that this is so, and some scholars have argued that an external legal framework provides analytical rigor to refugee status determination, but it does not empirically appear to be the case. My intention is to raise questions about these links. I am skeptic when it comes to the utility, or even the usage, of law norms in refugee status determination. I question the significance of finding citations to external sources of law in domestic asylum jurisprudence. To the extent that these citations reveal serious engagement with an analytic framework, and not just boilerplate language, there is risk of making refugee definition that is famously vague and difficult to apply consistently even more unwieldy by interpreting it with the often indeterminate norms of law. With respect to inclusion, is it helpful to say, as the Office of the United Nations High Commissioner for Refugees (UNHCR) has done, that persecution is serious violation of human rights? (2) Or in the European Union formulation, that it is severe violation of basic human rights? (3) Human rights law does not recognize division of basic and non-basic rights. To the contrary, human rights are interrelated, interdependent, and indivisible. With respect to exclusion, is it useful to know that an asylum seeker may be excluded under Article 1F(a) of the Refugee Convention for war crime as defined under law? Would that refer to all violations of the 1949 Geneva Conventions, which do not themselves use the terminology of war crimes, or perhaps just grave breaches? I have looked at the use of human rights law in refugee status determination in the context of claims of persecution based on economic harm, comparing Canada, New Zealand, and the United Kingdom, which interpret persecution in human rights terms, with Australia and the United States, which do not. (4) I found that despite de jure differences in the legal standard employed, all five countries applied de facto similar, strict, standard. …