Thursday, 19 December 2013

Special Issue of Journal of International Criminal Justice on the Interaction between Refugee/Migration Law and International Criminal/Humanitarian Law

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 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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