The Journal of International Criminal
Justice (JICJ) invites submissions for a Special Issue provisionally titled
‘The Interaction between Refugee/Migration Law and International
Criminal/Humanitarian Law'” to be co-edited by Fannie Lafontaine, Associate
Professor, Law Faculty, Laval University, Member, Board of Editors, JICJ;
Laurel Baig, Appeals Counsel, ICTY, Co-Chair, Editorial Committee, JICJ; and
Joseph Rikhof, Part-Time Professor, Law Faculty, University of Ottawa.
The wording of four regional refugee
instruments — the 1966 Bangkok Principles on Status and Treatment of Refugees,
the 1969 Convention on the Specific Aspects of Refugee Problems in Africa and
the 1984 Cartagena Declaration on Refugees — extends the definition of
‘refugee’ beyond what is contained in the 1951 Refugee Convention, and
explicitly invite the consideration of an international humanitarian/criminal
law. The reference to armed conflict in the context of subsidiary protection in
the European Qualification Directive indicates a similar approach. In a similar
vein, the UNHCR has commissioned a number of papers as part of its Legal and
Protection Policy Research Series with mandate to include notions of armed
conflict, foreign aggression and other terms used in these four regional
instruments as well as related concepts such as forced displacement or
persecution.
International humanitarian/criminal law
has played a major role in the development of the definition of who should be
excluded from the protections of the Refugee Convention. Naturally, international
criminal law has been influential in determining if a refugee claimant meets
the requirements of Article 1F(a), which permits exclusion if the claimant ‘has
committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect
of such crimes’. National courts and tribunals have tended to adhere to the
parameters of the international crimes mentioned in Article 1F(a), especially
regarding crimes against humanity, while also referring to international
instruments and jurisprudence to circumscribe the defences of superior orders
and duress. Recent domestic jurisprudence, notably at the highest levels in the
UK and Canada, has also turned to international sources to determine the legal
definition of complicity for exclusionary purposes. Courts have also looked to
international humanitarian/criminal law to determine whether a claimant should
be excluded pursuant to Article 1F(c) on the basis that he has ‘been guilty of
acts contrary to the purposes and principles of the United Nations’. National
courts have considered that most such ‘acts’ have been in the nature of human
rights violations or terrorist activities. In some jurisdictions, such as the
UK and Ireland, however, activities against international peacekeepers acting
pursuant to a mandate of the UN Nations Security Council were brought within
the parameters of this provision. Furthermore, international
humanitarian/criminal law has also proven to be influential in relation to the
issue of conscientious objectors.
International criminal law and
international refugee law interact in a number of other ways, all of which
raise issues related to the possible fragmentation of international law and the
need for coherence while taking into account the different purposes of each
legal regime: the post exclusion phase and its relationship with extradition
and prosecution, including with the obligation aut dedere aut judicare; the
consequences on exclusion of an acquittal or of the end of a served sentence
following a criminal trial in a domestic or international court; the possible
asylum claims of defendants or witnesses in international courts’ host states;
and so on.
Some of the key questions to explore in
this regard include:
* is
recourse to international humanitarian or criminal law an appropriate approach
in defining a refugee or providing subsidiary protection?
* are
all aspects of international criminal and humanitarian law desirable for
transposition into refugee law?
* what
are the parameters of exclusion and how far can reliance on international
humanitarian or criminal law help or hinder the proper development of the
concepts contained in these provisions?
* could
international criminal or humanitarian law provide answers to the dilemma of
the inability of states to remove a person because of non-refoulement
obligations or human rights concerns?
* are there jurisprudential or policy
trends in refugee or migration law which could assist international humanitarian
or criminal law?
* to
what extent is it appropriate for international humanitarian/criminal law
concerning forcible displacement rely on refugee/migration law?
* do
recent international criminal law decisions raise concerns for refugee agencies
working in the field?
The editors welcome submission
of abstracts not exceeding 400 Words on any of the themes
described above, or related areas of interest, on or before 28
February 2014, by email, at jicj@geneva-academy.ch. The abstract
should contain the author’s name, home institution, and the title of the
proposed paper. Please also send a current CV.
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