On the Development of the Concept of ‘Persecution’ in International Refugee Law
| Author | José H. Fischel de Andrade |
| Position | LLM (USP, São Paulo), PhD (UnB, Brasília), MSt (Cambridge), CAPES/PSIO Post-Doctoral Fellow (HEID, Genève). |
| Pages | 114-136 |
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The existence of ‘refugees’ dates back to time immemorial. Their internationally accepted legal definition, however, was only developed in mid-20th century and is reflected in the Convention relating to the Status of Refugees1.
The refugee definition applied today by most countries is based on the 1951 Convention; but just like the Convention refugee definition builds upon the experience and events which occurred between the First and Second World Wars and the immediate post-1945 period, in subsequent decades the interpretation of the refugee definition has progressively developed.
A key aspect of the refugee definition is the notion of ‘persecution’. Although the term ‘persecution’ is not codified under International Refugee Law, it has evolved significantly by means of doctrine and case law.
This article tracks the development of the concept of ‘persecution’ in International Refugee Law. The first three sections of the article show that although the notion of ‘persecution’ did not figure explicitly in interwar refugee instruments, it started to become apparent at that time; that in the immediate post-1945 period the notion of ‘persecution’ began to take a normative form as one of the ‘valid objections’ thatPage 115would justify a refugee’s resolve not to return to his or her country of origin, and hence a need for international protection; and that the 1951 Convention consolidated the importance of the notion of ‘persecution’ vis-à-vis the refugee definition. After this historical reflection, the article analyses the doctrinal and jurisprudential development of the concept of ‘persecution’ and identifies its core elements by answering the following questions: Who carries out the persecution and who is considered a victim of persecution? How is it carried out? What are the putative reasons advanced as grounds for persecution? When is it carried out? Which rights are (to be) violated in cases of persecution?
Although refugees have been a common feature of European history, it was not until after the First World War and particularly following the 1917 Revolution in Russia and the exchange of populations between Greece and Turkey that this continent was faced for the first time with massive flows of refugees amounting to millions in need of international protection. Several international legal instruments dealt directly or indirectly with the legal and logistical aspects regarding their situation2.
Russian refugees were mostly denationalised and numbered between 1,500,000 and 2,000,000 persons3. The League of Nations decided to act on their behalf and on November 1st, 1921, Dr. Fridtjof Nansen took office as High Commissioner for Russian Refugees4. On the July 5th, 1922 an agreement5 was concluded with a view to protecting Russian refugees by means of documenting them. A definition of who should be considered a Russian refugee was not given.
An influx of some 300,000 to 400,000 Armenian refugees mainly to Europe in the early 1920s prompted the League of Nations to assist them. They came under the ratione personae jurisdiction of Dr. Nansen’s office. Between May 10th and 12th, 1926 a Conference regarding Russian and Armenian refugee questions was convened in Geneva. The result was the conclusion of an international instrument on the issuance of identity documents to both Russian and Armenian refugees6. Beneficiaries were defined as follows:
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Russian [refugee]: Any person of Russian origin who does not enjoy or no longer enjoys the protection of the Government of the Union of Socialist Soviet Republics and who has not acquired another nationality.
Armenian [refugee]: Any person of Armenian origin formerly a subject of the Ottoman Empire who does not enjoy or no longer enjoys the protection of the Government of the Turkish Republic and who has not acquired another nationality7.
In the late 1920s other groups of refugees needed international protection. Hence on June 28th, 1928 a Conference was convened in Geneva by the League of Nations High Commissioner for Refugees. In execution of a resolution previously adopted on June 7th, 1928 by the Council of the League of Nations, the governments represented at the conference decided to adopt an international instrument8 by which the measures on behalf of the Russian and Armenian refugees would be extended to other groups of refugees so defined:
Assyrian, Assyro-Chaldaean and assimilated refugee. Any person of Assyrian or Assyro-Chaldaean origin, and also by assimilation any person of Syrian or Kurdish origin, who does not enjoy or no longer enjoys the protection of the State to which he previously belonged and who has not acquired or does not possess another nationality;
Turkish refugee. Any person of Turkish origin, previously a subject of the Ottoman Empire who under the terms of the Protocol of Lausanne of July 24, 1923, does not enjoy or no longer enjoys the protection of the Turkish Republic and has not acquired another nationality9.
These four definitions merit comment. Firstly, they were embodied in non- binding instruments and hence did not have legal force between the parties, since the agreements were not treaties but rather mere recommendations10. Secondly – and most notably for the purpose of this article – not one of the four definitions of a ‘refugee’ made any mention of ‘persecution’. While ‘lack of protection’ is offered as a criterion for granting refugee status, ‘lack of protection’ did not imply or even import ‘persecution’ for definitional purposes11. Nor was there in these definitions any constituent element that could be directly related to persecution.
Until the mid-1930s there had been no development of a general, more comprehensive definition of ‘refugee’. At its Brussels session in 1936, L’Institut de Droit International defined a ‘refugee’ as any person who, because of political events arising in the state of which he is a national, has left or remains outside the territoryPage 117of that state, has not acquired another nationality and does not enjoy the diplomatic protection of another state12. The ‘lack of protection’ standard still prevailed.
It was only in 1938 that a criterion of ‘persecution’ first appeared in an international legally binding instrument. Article 1 of the Convention Concerning the Status of Refugees coming from Germany13, signed in Geneva on February 10th, 1938, stated that
1. For the purpose of the present Convention, the term ‘refugees coming from Germany’ shall be deemed to apply to:
(a) Persons possessing or having possessed German nationality and not possessing another nationality who are proved not to enjoy, in law or in fact, the protection of the German Government;
(b) Stateless persons not covered by previous Conventions or Agreements who have left German territory after being established therein and who are proved not to enjoy, in law or in fact, the protection of the German government.
2. Persons who have left Germany for reasons of purely personal convenience are not included in this definition14.
The first part of the Convention follows the pattern of the previous instruments by generally defining as a ‘refugee’ someone who no longer enjoys the protection of his or her state of nationality, nor has become a national of another state. The difference in Article 1 of the 1938 Convention, as opposed to the preceding instruments, is that it has a differently worded exclusion clause, which leaves out from the definition of ‘refugee’ persons who left Germany for reasons of purely personal convenience, and not merely those who have acquired another nationality.
By including this newly-worded exclusion clause, its drafters singled out for the first time the forced migration character of refugee status. In previous definitions forced migration was not an explicit let alone a fundamental element of the definition. Undoubtedly the intention of this new wording was to insert – albeit timidly – in the definition of ‘refugee’ the reasons which prompted both the flight15 and the lack of – and therefore the need for substitutive – protection. In doing so the component ‘persecution’ surfaced, although implicitly.
From the summary records of the Inter-Governmental Conference of 1938, which adopted the Convention, it is quite clear that a condemnation of German policies at that time was exactly what the Conference wanted to make16. The discussions that took place in the Inter-Governmental Conference clearly indicate that the persons envisaged by the exclusion clause of paragraph 2 of Article 1 were those “who had left Germany for economic reasons but without being compelled to do so, or [who]Page 118had gone abroad in order to evade taxation”17, and therefore not the victims of race- or politically-based economic sanctions or proscription imposed by the Nazi regime.
The association which one finds in the 1938 Convention between the refugee’s flight and the requirement that the flight cannot be based on reasons of purely personal convenience has significantly evolved since. In the 1938 Convention the inclusion clause does not mention the reasons on which flight is grounded; it rather makes reference to two reasons which are not to be taken into account when recognizing someone as a refugee – namely personal convenience and protection by another state. In the ensuing instruments the reason justifying the need for protection evolved gradually until its current construction emerged, i.e. ‘well-founded...
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