When can a person be excluded from protection?

When a hijacked Afghan airliner touched down at London's Stansted airport in early 2000, the incident touched off an international furore. Britain's media initially greeted the Afghan passengers as innocents escaping the wrath of the vengeful Taliban rulers.

But in an atmosphere of rising xenophobia, the welcome quickly turned into condemnation and even women and children were denounced by some newspapers as frauds, so-called 'bogus' asylum seekers staying in luxury hotels at the taxpayers expense.

Britain's government insisted no Afghan would stay in the country a moment more than absolutely necessary. European governments watched as the drama developed into a test case of sorts on the issue of protection.

The hijackers claimed they had escaped Afghanistan only one step ahead of the

Taliban who had already tortured some of their group. The government set aside their asylum claims and put 12 of them on trial. Nearly 80 civilians, including some family members of the hijackers, claimed asylum. Two claims were approved and 37 rejected cases are being appealed. The crew and other passengers returned home.

Which is where the story becomes interesting. Persons involved in hijacking normally could be denied refugee status under the so-called 'exclusion clauses' contained in the 1951 Convention. UNHCR has insisted, however, despite mounting pressure from governments worried about increased terrorism, that even seemingly clear cut exclusion situations must be treated with the utmost delicacy, an approach vindicated in the hijack drama.

Though members of the airline crew initially were treated as heroes, they were subsequently harassed and threatened.

Three crew members escaped to neighboring Pakistan. The fate of the civilian passengers is unclear.

BARRING CLAIMANTS

The Convention's exclusion clauses bar a person from refugee status for a variety of reasons including crimes against humanity, war crimes, serious non-political crimes committed outside the country of refuge and acts contrary to the purposes and principles of the United Nations. These include a wide range of offenses from murder and rape to the wanton destruction of cities.

The clauses were designed "to deprive perpetrators of heinous acts of refugee protection and to safeguard the receiving country from criminals who present a danger to that country's security," according to a UNHCR briefing note on the issue and "from this perspective, exclusion clauses help to preserve the (overall) integrity of the asylum concept."

But widespread atrocities committed in the Balkans during the 1990s and the Rwandan genocide fueled concerns about international legal loopholes. Some governments feared terrorists could use the Convention as a shield and increasingly rely on anti-terrorism international instruments to combat what they perceive as the menace.

UNHCR has insisted that the Convention and its exclusion clauses are wide ranging and flexible enough to bar undesirables from achieving refugee status. The agency worried instead that "in a climate of numerous challenges to asylum, exclusion clauses should not become another avenue by which deserving cases are denied international protection."

Even if a person has committed an offense serious enough to warrant exclusion, jurists say, the severity of the crime should still be 'balanced' against the likely fate of the claimant if (s)he is barred from the asylum process. For example, if a drug trafficker faces torture or execution upon return, he may be granted refugee status.

There are unresolved issues which have been explored during the current global consultations. The consequences of exclusion, for instance; whether a person excluded should be prosecuted by the host authorities or returned to the country of origin.

Humanitarian officials worry too about the forcible return (refoulement) of undesirable people from countries which have not acceded to international human rights instruments.

"This whole area is very sensitive," one lawyer said, "because we are generally dealing with a potential refugee who may also be a criminal. The bottom line, however, is that application of the exclusion clauses must also remain the exception rather than the norm."

Source: Refugees Magazine Issue 123: "The Wall Behind Which Refugees Can Shelter" – The 1951 Geneva Convention 50th Anniversary (July 2001). Download the complete issue (pdf, 1.2Mb) here