The Relationship between Safeguarding Internal Security and Complying with International Obligations of Protection. The Unresolved Issue of Excluded Asylum Seekers

Abstract

In the wake of the terrorist attacks of 11 September Article 1F, the ‘exclusion clause’, of the Refugee Convention attracted renewed attention. The exclusion clause obliges states to exclude individuals suspected of certain crimes from obtaining status as a refugee. Recently, the European Commission has adopted a proposal for a Council Directive introducing the exclusion clause as a central feature in the eligibility test for protection under the Common European Asylum System. Still, not all excluded asylum seekers can be expelled. Central human rights treaties prohibit refoulement that would put the individual at risk of being subjected to torture or cruel or inhuman treatment. Although this may apply to a considerable part of this group the fate of these individuals still remains unresolved. The Commission apparently puts faith in the principle of aut dedere aut judicare: if states are unable to expel excluded individuals they are obliged as a matter of international law to prosecute them under their own jurisdiction. Refugee law scholars, however, have been remarkably reluctant to venture into the realms of international criminal law and until today the extent to which the principle of aut dedere aut judicare is applicable to 1F-crimes has not been determined. This article examines the recent attempts to base an argument of aut dedere aut judicare in customary international law and on an erga omnes obligation, concluding that neither approach satisfies the demand of state practice. Using the example of the European Union and Germany it further argues that regional regimes may have no or inadequate strategies of addressing the issue of the post-exclusion phase.