Separating the Persecutors from the Persecuted: A Feminist and Comparative Examination of Exclusion from the Refugee Regime

Abstract

In the 1951 Convention relating to the Status of Refugees (Convention), article 1F (the exclusion clause) provides that those who have committed certain crimes are excluded from refugee status. Since the 1990s the exclusion clause has been increasingly applied and often to those who played minor roles in the commission of offences and were not in positions of authority. This widening net of exclusion has prompted UNHCR and many refugee law scholars to reconsider which legal safeguards might avoid over-extending the net of exclusion. One suggested reform is the use of international criminal law (ICL). This article will critically examine the use of ICL in exclusion assessments from a feminist perspective. It will do this by conducting a comparative analysis of cases in which women have been excluded from the Convention’s protection in the USA, which does not refer to ICL, and the UK, which draws heavily on this body of law. The women in these cases committed their crimes under highly coercive circumstances in which they were victims of torture, deprivation of liberty, and sexual violence. However, it will be demonstrated that both the legal approaches to exclusion in the USA and the UK masked the impact of these coercions and provided a fragmented understanding of the circumstances that led to the offence. This fragmentation is inconsistent with UNHCR guidance, calling on decision makers to assess the full circumstances of the case, and recent exclusion jurisprudence, requiring an assessment of all the circumstances to determine whether the asylum seeker lacked a ‘moral choice’. Yet this guidance and jurisprudence has never been applied because there is no established legal framework in which to examine how broader circumstances impact on ‘moral choice’. Therefore, the second part of this article undertakes a purposive interpretation of the exclusion clause to explore the meaning of ‘moral choice’ in refugee law.