Excluded from the refugee protection but unreturnable: The international human rights protection of the undesired.

• Author: Putranto, Christian Donny

Abstract

This article attempts to shed a light on the human rights protection of the individuals who are excluded from the refugee protection due to criminal involvements but unreturnable to their countries due to the complementary protection under international human rights law. The non-refoulement principle under the refugee regime is only applicable to refugees, allowing countries to expel or deport those who are not refugees. However, the same principle under international human rights law applies to everyone regardless of one's legal or immigration status. Thus, countries face an unusual situation where some individuals are trapped in limbo. This article argues that despite their status, countries must protect the rights applicable to them to avoid their lives being destitute. The main rights argued in this article are the freedom from arbitrary detention, the right to work, and the right to adequate living standards. By protecting these rights, these individuals' lives will not be destitute while waiting for their eventual and humane solutions.

I Introduction

The Convention relating to the Status of Refugees (1) ('Refugees Convention') essentially protects those who qualify as refugees by not returning them to a location where their life is at risk. (2) This protection is also known as the non-refoulement principle. However, it also precludes some people from its benefit. This is set forth in the Refugees Convention art 1F, known as the exclusion clause. In principle, this provision precludes those who are deemed not deserving of international protection under the realm of the Refugees Convention for being suspected of involvement in serious criminal conducts. (3) International human rights law now complements the international protection under the Refugees Convention. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('CAT) and the International Covenant on Civil and Political Rights ('ICCPR'), for instances, prohibit States from returning any individuals to any area where his or her life may be at risk. (4) This protection is known as complementary protection. Indeed, international human rights law has strengthened refugee protection. Nevertheless, it is the other side of the coin that people have so far largely ignored. In some cases, the human rights law protection clashes with the refugee protection.

The source of this conflict is between the exclusion clause and the complementary protection, wherein these put people in uncertainty. Due to these two regimes of protection, there are individuals who are excluded from the refugee protection, but nonetheless; they are entitled to the complementary protection under human rights law. The States that have, at first, denied asylum are now legally obliged to accept them under the human rights law. The current debates on this area focus on either to prosecute the excluded individuals (5) or to extradite these individuals to jurisdictions that are willing to prosecute them. (6) However, what happens while these individuals' eventual fate is not resolved? They are not refugees, asylum-seekers, or economic migrants. They may be genuine refugees, but they are denied the refugee protection because they are unworthy of it.

There have been little scholarships devoted to this issue and this article attempts to enrich the discussion with a proposal that may resolve the issue. Section II will first discuss how the exclusion from the refugee protection clashes with the non-refoulement principle. This section will discuss the exclusion clause under the Refugees Convention and the non-refoulement principle under international human rights law. Section III will elaborate the current practices of States in dealing with this dilemma. Taking examples from Indonesia, Australia, and the Netherlands, this article will reflect upon the current States practice in dealing with this group of people. Section IV will argue that despite their uncertain status pending to an eventual solution, countries still have legal obligations to provide minimum protection towards these individuals' rights. Section V will conclude that the international community must come to an understanding to deal with this problem pending final resolutions of these people's future.

II Conflicting principles: the Refugees Convention's integrity v. human rights protection from refoulement

1. Exclusion Clause under art IF of the Refugees Convention

   The Refugees Convention is the primary instrument for refugee protection. (7) Art 1F excludes those who are in need of international protection but nonetheless underserving of one if there is a 'serious reason for considering' of their involvement in a serious criminal conduct. (8) The exclusion clause is aimed to prevent abuses of refugee protection by any fugitives from justice who are involved in grave crimes. (9) Broadly speaking, art 1F categorises the criminal conduct into three types namely, international crimes (10) (war crimes, crimes against humanity, or crimes against peace), serious non-political crime, (11) and acts contrary to the principles and purposes of the United Nations. (12) To begin with, it is necessary to look at the drafting process of the convention in order to obtain the background and purpose of the provision.

   Art 1F was one of the most debated provisions since it attracted wide interests of many participating countries. (13) Drafted in the post-Second World War, some participating countries feared that the Refugees Convention would shield criminals from accountability. The French representative said that 'criminals should not be placed on an equal footing with bona fide refugees' (14) and it was a key factor of France's support for the draft. (15) This idea has arguably shaped the art 1F's purpose not to taint the convention's honour by harbouring criminals. (16) In the contemporary context, courts (17) and the UNHCR (18) affirm the drafters' intention that the exclusion clause under art 1F exist to preserve the convention's integrity. Hathaway and Foster nevertheless propose that there are two matters that need to be considered when applying art 1F. First, utmost care should be taken when excluding minors under art 1F considering their rights. Second, the exclusion clause should be carried out independently meaning that individual claims of the excluded person's family members should not be affected. (19) Further, similar to Hathaway and Foster's concern on the careful application of the exclusion clause, (20) the UNHCR states that art 1F must be applied 'scrupulously' (21) since it involves excluding those who are otherwise fit the refugee definition. Although a person is excluded from refugee protection that does not necessarily entitle the host authorities to expel, return, or extradite them. (22) There are other international human rights instruments that may protect her, which is discussed in the following sub-section.

2. International Human Rights Law's Complementary Protection

   Where the Refugees Convention, due to the exclusion clauses, cannot provide international protection to those in need, there are several international human rights instruments that may be relevant. (23) This section focuses on four instruments, namely the CAT, the ICCPR, and the European Convention on Human Rights ('ECHR').

   1. The CAT

      If a person is excluded from the refugee protection, the CAT can provide a complementary protection. The CAT provides the only explicit subsidiary protection that obliges State parties not to expel, return, or extradite anyone if there is a risk of being tortured. (24) Unlike the non-refoulement under the Refugees Convention, the protection of non-return to torture under the CAT is absolute and without any exception. (25) The prohibition of torture has attained the jus cogens status hence non-derogable at any situation. (26) Since the non-refoulement principle aims to protect individuals from serious harm, including torture, hence it is also applicable to the present context. The Torture Committee has clarified that the prohibition under the CAT art 3 extends to admission to and removal of individuals from a territory. (27) In this sense, such protection may be available to those who do not fall within the ambit of the Refugees Convention. (28)

      However, its implementation is less straightforward. There are at least two factors need to be satisfied if a person wants to acquire the complementary protection under the CAT. First, art 3 requires a 'substantial grounds' evidentiary level for believing that torture is likely upon return. (29) The Torture Committee has explained that 'substantial grounds' shall involve real and personal risk as well as it should go beyond a theory or suspicion, but it does not have to be beyond the reasonable doubt standard. (30) In other words, a mere fear of the authorities would not meet the threshold under art 3.

      Due to the reasonably high threshold of 'substantial grounds', the Torture Committee has rarely found breaches of art 3. For instance, in PQL, it found that the appellant, a Chinese citizen, had failed to substantiate his allegation that he would be personally at risk of being tortured if returned to China. (31) In that case, the Committee held that a mere fact that the appellant would be arrested did not constitute a sufficient ground for believing that he would be tortured if returned to China. (32) In other cases, the Committee also reached similar conclusions where it urged the applicants to show factual evidence of being tortured or ill-treated if returned or expelled to their home country. (33)

      Second, individuals who wish to obtain protection under art 3 may find a dead end if the country that attempts to deport or extradite is not a party to the CAT. Even if the deporting or extraditing country is a party to the CAT, the applicant still needs to exhaust all local remedies through domestic courts before bringing the claim to the...