International criminal law and refugee protection: The interplay between international criminal law and Article 1F(A) of the 1951 Convention Relating to the Status of Refugees

The 1951 Convention Relating to the Status of Refugees is the centre piece of international refugee protection. It consolidates previous refugee instruments thereby providing a comprehensive codification of refugee rights internationally. Whilst assuring basic civil and social rights to millions of refugees worldwide, the Convention in Article 1F(a) seeks to exclude from its protection individuals determined to have committed international crimes prior to seeking refuge. Considering the autonomous nature of the Convention, this study seeks to examine two research questions. It seeks to examine the scope of the correlation between international criminal law and the application of Article 1F(a) to asylum determinations, and the extent to which this application upholds the refugee applicant’s right to procedural fairness and natural justice. This analysis is approached from within the context of the conceptual issues of crime, standard of proof, individual criminal responsibility, and criminal defences. The framework adopted assesses these concepts in the practice and jurisprudence of international criminal justice against that of a sample of refugee hosting States, and the guidance of the United Nations High Commissioner for Refugees. It is argued that a principled application of the clause requires a unified approach based on international criminal law principles. Whereas States have the right to apply the clause autonomously, the gravity of the crimes involved and the possible consequences to the claimant require a uniform approach derived from international criminal law. This interpretation and application of the clause institutes universal, fair, and just procedures in the application of criminal principles to refugee law. It upholds the need to interpret and apply the clause in a careful manner with a full appraisal of all circumstances of the applicant thereby preserving the individual’s right to procedural fairness and natural justice.