An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes Against Humanity

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In 2013, the International Law Commission (ILC) added to its long-term work programme the topic of a convention on the prevention and punishment of crimes against humanity. This proposed convention is meant to join sibling conventions addressing genocide and war crimes and would stand in the tradition of other conventions addressing serious crimes, such as torture and enforced disappearance. So far, the ILC has adopted 15 Draft Articles which include a wide range of obligations for future State parties regarding the prevention of crimes against humanity, as well as on measures relating to domestic criminalization, mutual legal assistance and extradition. This blog post, however, focusses on Draft Article 5, which includes an absolute non-refoulement obligation with regard to crimes against humanity:

Article 5 Non-refoulement 

  1. No State shall expel, return (refouler), surrender or extradite a person to territory under the jurisdiction of another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.
  2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the territory under the jurisdiction of the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

While the commentary on the Draft Articles argues that most States consider Article 5 to be a mere codification exercise and consistent with existing obligations under international human rights law (IHRL), some states such as the USA, UK and Jordan have expressed their concern that Draft Article 5 constitutes a progressive development of the law and introduces new, mandatory standards of non-refoulement protection. This post makes three main claims. First, that Draft Article 5 does indeed constitute a progressive development of the law and would supersede the current non-refoulement regime under both refugee and human rights law. Second, that although the proposed new regime would increase the protection of individuals from refoulement, it does so in a rather arbitrary fashion. Lastly, that this new regime will further restrict the ability of states to expel or return unwanted individuals who have committed serious crimes or constitute a danger to their community and could therefore trigger a significant political backlash once the Draft Articles reach the level of political decision makers in the future member states of the Convention.

Non-Refoulement and its Exceptions in Article 33(2) Refugee Convention

In the Sixth Committee, the United Kingdom has expressed her ‘concern that the approach [of Draft Article 5] went beyond the protections of the Convention relating to the Status of Refugees’. Article 33(1) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol forms the cornerstone of the modern refugee law regime. It obliges states not to expel or return (‘refouler’) a refugee in any manner whatsoever to a State or territory in which his or her life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. However, Article 33(2) contains an exception to that rule by excluding individuals who have committed a particularly serious crime or pose a danger to the security of the country in which they are currently present. It operates differently from the exclusion clause in Article 1(F), which precludes the application of the Convention altogether. Under Article 33(2), the individual concerned does not cease to be a refugee and continues to benefit from the protection of the UNHCR but may be lawfully expelled or returned. This fundamental obligation of non-refoulement and said exceptions in Article 33 are today widely considered to be reflective of customary international law (See i.e. Andreas Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (OUP 2011) at 1411). Although sometimes subjects of criticism, Article 1(F) and Article 33(2) help to preserve the integrity of the asylum concept. Even the UNHCR recognises that if refugee law were permitted to afford protection to perpetrators of grave offences, the practice of international protection would contradict the humanitarian and peaceful nature of the concept of asylum.

The ILC mentions in its commentary that it decided not to include an exception clause similar to Article 33(2) GRC because such clause had not been copied in other treaties since adoption of the Refugee Convention in 1951. Whereas it is true that the exception clause has not been incorporated in international treaties, it was nevertheless replicated more recently in Article 21(2) of the 2011 EU Qualification Directive. Although the Qualification Directive is not a treaty per se, it still a vital piece of EU legislation that binds 28 states and forms the cornerstone of the EU refugee law regime. Even if the exclusion clause has not been replicated in new international instruments, that does not automatically mean that it has become redundant. To the contrary, modern state practice rather shows an increased use and expansive interpretation of Article 33(2), especially in the aftermath of 9/11 and the ‘global war on terror’. While such extensive application and use of the exclusion clause for ‘anti-terror’ purposes can and should be viewed critically and often conflicts with the complimentary protection under IHRL mentioned below, it nevertheless demonstrates that there is definitely no evidence that state practice would somehow indicate a shift away from the general use of Article 33(2). Draft Article 5 would, therefore, go beyond the obligations enshrined in the Refugee Convention.

Non-Refoulement Protection Under Human Rights Law

Modern developments in the field of human rights law have partially superseded the exception regime of Article 33(2) of the Refugee Convention and also extended protection from refoulement to individuals who are not refugees. Most importantly, the 1984 Convention against Torture and Cruel, Inhumane or Degrading Treatment and Punishment (CAT) contains an absolute prohibition of refoulement for individuals in danger of being subjected to torture in Article 3:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

The CAT did not replicate the exception clause of Article 33(2) Refugee Convention. In addition, the European Court of Human Rights (ECtHR) has developed a firm jurisprudence which incorporates this absolute principle of non-refoulement into Article 3 of the European Convention on Human Rights (ECHR) (See e.g. Soering v UK, Vilvarajah v UK or Chahal v. UK). The absolute nature of the prohibition of refoulement of an individual who would be under a serious risk to be subjected to torture has also been affirmed by the Human Rights Committee (HRC). State parties to the ICCPR may not in any manner ‘remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 (Right to Life) and 7 (Prohibition of Torture) of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’ (See CCPR General Comment No. 20, para 12). This absolute nature of the non-refoulement obligation with regard to torture and the right to life is without doubt legitimate. Torture, in particular, is often considered as ‘the negation of human dignity’ and its prohibition by now commonly considered as a peremptory norm of international law. More recently, an absolute non-refoulement obligation was included in Article 16 of the 2006 Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). The commentary to Draft Article 5 makes clear that the language was deliberately borrowed from the ICPPED.

In 2018, the Inter-American Court of Human Rights (IACtHR) has noted in its landmark advisory opinion on the institution of asylum that:

‘the principle of non-refoulement is fundamental not only for the right to asylum, but also as a guarantee of several non-derogable human rights, since it is in fact a measure aimed at preserving life, freedom and the integrity of the protected person.’ (para 180, unofficial translation).

Under the ECHR, refoulement might equally be prohibited in situations of arbitrary imprisonment under Article 5 (See El-Masri v. FYRM) or flagrant violations of fair trial rights under Article 6 (See Tomic v. UK). The ECtHR has also accepted non-refoulement obligations with regard to violations of other rights, including Article 8 of the ECHR (See e.g. Moustaquim v. Belgium). The HRC, on the other hand, has interpreted some forms of prolonged arbitrary imprisonment to constitute a form of inhumane treatment, which would in turn subject it to the absolute non-refoulement protection under Article 7 ICCPR (See CCPR General Comment No. 20, para 6). In ARJ v Australia, the HRC even seems to acknowledge, that, in theory, the violation of any right protected by the ICCPR could trigger protection from refoulement (see also CCPR General Comment No. 15, para 5). However, one has to bear in mind that some of these rights are either qualified rights that may be balanced against security interests or lawfully derogated from in times of war or national emergency.

A Progressive Development of The Law and an Arbitrary Regime of Protection?

Crimes against humanity can comprise a wide range of conduct, including torture and extermination when committed in a widespread and systematic manner, but also acts that might not reach the same level of gravity. Under Draft Article 5, for example, every form of arbitrary imprisonment, as long as it occurs as part of a widespread and systematic attack would trigger protection from refoulement. The CAH of persecution, on the other hand, requires that the perpetrator, based on the group identity of the victims, severely deprives one or more persons of their fundamental rights contrary to international law (see ICC Elements of Crime). This includes violations of the right to life or prohibition against torture, in which case the absolute non-refoulement protections under IHRL would apply. However, the CAH of persecution does not require physical violence and can also be committed through ‘the issuance of discriminatory orders, policies, decisions or other regulations’ (See Prosecutor v Tadic (Trial Chamber) [707] and Prosecutor v Simic (Trial Chamber) [58]). While not covered by the complementary protection of IHRL, such conduct would usually still provide victims with refugee status and, accordingly, protection under Article 33(1) of the Refugee Convention. However, this protection is subject to the security exceptions of Article 33(2). Similar considerations apply to the CAH of apartheid. Would Draft Article 5 mean any Palestinian or Uyghur could claim protection from being returned to the West Bank or China, respectively, because the treatment of their ethnic group has arguably reached the threshold of apartheid? (I’m not making any substantive assessment on whether this is indeed the case). The CAH of deportation (across a border) and forcible transfer (within the same country) do not seem to be currently covered by non-refoulement protection under IHRL at all, except for cases where the subsequent deportation would lead to torture or other irreparable harm in the third state. Finally, in accordance with the Rome Statute, Draft Article 3(1)(k), also includes ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.’ This CAH has so far been interpreted to comprise a wide range of conduct, ranging from forced marriages (SCSL, Brima et al and Sesey et al) to extensive destruction of property (Consider the Iraqi High Tribunal’s Decision in Prosecutor v Hussein, at 178-79). The United States have therefore rightfully argued that Draft Article 5 could result in an expansion of absolute non-refoulement obligations beyond those currently imposed on States through the CAT and other international instruments.

Although the Greek submission wrongly considered Draft Article 5 as overlapping with existing obligations it raised another very important point. It enquired whether the ILC has properly taken into account the specific nature of crimes against humanity. What sets crimes against humanity apart from other crimes and makes them so severe is not the particular gravity of their single constituent acts but the fact that these acts occur in a widespread and systematic fashion, organized by a Government or another organisation exercising political power. It makes no difference from the perspective of the victim whether his or her arbitrary imprisonment, for example, was a single, isolated act or part of a widespread, systematic attack. This would lead to the rather absurd result that in some jurisdictions an individual may benefit from refoulement protection under Draft Article 5 if said arbitrary imprisonment occurs in a widespread and systematic fashion in the home state concerned. Yet, another individual, who faces the exact same personal fate of imprisonment may be legally returned if said imprisonment occurs as an isolated act. The legality of refoulement suddenly does not depend on the type of crime and likelihood of the individual concerned being subjected to it, but the factual and organizational circumstances surrounding the crime. This renders the new layer of protection arbitrary from the perspective of the victim.

Political Backlash

Apart from purely legal and systemic considerations, there might be significant policy implications of Draft Article 5. First of all, it would be highly relevant to the current debate on refugee policies. Of the top five countries of origin of asylum seekers arriving in the EU (Syria, Afghanistan, Iraq, Pakistan and Iran) for example, at least four are currently or have recently been the scene of crimes against humanity. Very often, cases in which Art 3 ECHR or CAT obligations have prevented the expulsion of refugees who have committed serious crimes or individuals associated with extremist groups have sparked public outrage, sometimes funnelled by boulevard newspapers and right-wing politicians. Although Draft Article 5 would largely entrench the already existing jurisprudence of the ECtHR and the HRC, it would also expand non-refoulement protection to conduct that is not yet covered under current IHRL obligations, or make provisions that so far have allowed for derogations and exceptions absolute.

It is doubtful whether a future convention that is meant to address the prevention and punishment of crimes against humanity is the right instrument to introduce such change to the non-refoulement regime. Given the current political trends towards a tougher expulsion policy on criminal migrants and people associated with extremists movements and especially the recent backlash even against legally non-binding instruments such as the UN Compact on Migration, it is highly likely that a significant number of States do not want to commit themselves to an obligation that would further restrict their rights to expel unwanted individuals. At the moment, States are even reluctant to reaffirm existing obligations. Indeed, an explicit reference to the principle of non-refoulement had to be dropped from the Global Compact on Migration. Maybe the ILC drafters have simply not contemplated the full extent of the legal and political impact Draft Article 5 might have. So far, the Draft Articles have been dealt with on a technical, diplomatic level. Once they reach the political arena, the inclusion of Article 5 as it currently stands may very well backfire. It would be deeply worrying if a future convention against crimes against humanity, an instrument that has been missing for decades, could not be adopted with a broad consensus due to this policy dilemma.

A compromise hinted at in the US submission could be to simply replicate the security exception enshrined in Article 33(2) of the Refugee Convention. I believe this would be a sensible way forward. It would reinforce existing obligations without introducing changes that States might be unwilling to accept. Whereas there are certainly strong legal and humanitarian arguments in favour of extending the protective scope of non-refoulement, one has to be aware of the political realities. Further restricting State’s policy leeway to expel individuals who have committed grave crimes or constitute a danger to their host community could further channel political backlash against the current protection regime. It is therefore concluded that further critical engagement with Draft Article 5 is necessary.

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Tamas Molnar says

May 21, 2019

Dear Hannes,

Thanks a lot for the insightful, clearly argued and very topical blog post which sheds light on a new possible angle of assessing the risk of refoulement in some specific situations.

While I understand some of your concerns related to the expanded use of the principle non-refoulement in the context of crimes against humanity (CAH), some of your arguments seem to be more political than legal. True, such a provision might block the negotiations at the political level, due to the unfriendly political climate concerning migrants' rights and elevating such standards. Nevertheless, you have repeatedly noted that further expanding the material scope of the prohibition of refoulement may prevent States to "expel individuals who have committed grave crimes or constitute a danger to their host community". In my view, this concern only focuses on a relatively smaller sup-group of the people concerned, namely those non-national criminals who might avoid extradition by invoking the risk of refoulement under CAH. However, a great number of other migrants, rejected asylum seekers, victims of trafficking in human beings etc. could benefit from this extra protective layer, who do not represent any treat to national security or public order; and who otherwise could not stop their deportation leading to grave human rights violations in their own country. Thus one should not forget the silent, bona fide majority of those who should legitimately rely on the protection offered by the principle of non-refoulement, also in the context of CAH.

Furthermore, replicating the security exception set out in Article 33(2) of the 1951 Refugee Convention in Draft article 5 would look odd in light of the overall architecture of the concept of non-refoulement as it has been developing over time until now. Draft article 5 does not confine itself to the refugee law context, but takes the broader, international human rights law interpretation of the concept (e.g. not using the term "refugee" but "a person"). These layers can be conceived as two concentric circles, the refugee law framework being the smaller circle and IHRL framing the bigger one (which also adsorbs the refugee law-related prohibition, without replacing or emptying it). As a result, introducing into the draft a restriction which exists only in the refugee law context (at the universal level) would not fit into the larger, human rights law context under which non-refoulement is an absolute right, without any derogation/exception, as you have also mentioned.

In addition, we have to distinguish between the ECtHR non-refoulement jurisprudence per se, developed under Article 3 of the ECHR, on the one hand; and other rulings establishing various bans on the expulsion of foreigners, on a case-by-case basis, using other Convention rights,(e.g. right to private/family life, rights of the child etc.), on the other hand. Expelling a foreigner may often go at variance with a number of rights, outside the refoulement context. In my reading, for instance, violations of Article 8 of the ECHR (right to private life)in Moustaquim v. Belgium was not about non-refoulement (Article 3 was not examined), but the Court used another Convention right to prevent expulsion, as a result of a balancing exercise between competing rights and State interests.

Finally, given the qualifier of the CAH acts enumerated in Draft article 3 ("when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"), I do not see this new non-refoulement obligation superseding the existing obligations under refugee law and human rights law, but rather complementing the existing ones as an additional layer, applicable in specific situations, on the top (or next to) of these "concentric circles".

All in all, congrats for your extremely interesting and thought-provoking contribution, it is great to discuss such issues within the larger community of international lawyers, beyond the specific circle of refugee/migration lawyers.

I wish you all the best with your future endeavours, and would be happy to further discuss issues of common interest.