ceu 2012ceu 2012 non-application of the convention - cessation – exclusion – protection...

CEU 2012

NON-APPLICATION OF THE CONVENTION

-CESSATION – EXCLUSION – PROTECTION ELSEWHERE

Presented by Boldizsár Nagy, Brussels, ULB

Certificate Course, 2011

CEU 2012

Presentation by Boldizsar Nagy

Non- application

of the Convention

Cessation clauses

Exlusion clauses

Protection by others

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Cessation clauses

Voluntary act of the refugee

Changed/ceased circumstances

Re-availment of

protection 1 § C (1)

Re-establishment in country of

origin1 § C (4)

Re-acquisition of

(old) nationality1 § C (2)

Acquisition of new nationality

1 § C (3)

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CESSATION CLAUSES• Re-availment of protection 1 § C (1)• Voluntary and intentional

• Passport• Registering with authorities of the country left (acquiring documents

through diplomatic missions)

• Re-establishment in country of origin 1 § C (4)• Voluntary and intentional

• Length of stay (short visit : not)• Information on circumstances

• Voluntary re-acquisition of (old) nationality 1 § C (2)• What if state (re)-extends, but refugee does not want?

• Acquisition of new nationality 1 § C (3)• Where? – state of asylum or resettlement – clear

- successor state of persecuting state extending -???

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CESSATION - CHANGED CISRUMSTANCES - CLAUSE

GC 1 § C (5)• He can no longer, because the

circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality

• Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality

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CHANGED CIRCUMSTANCE CLAUSEASSESSMENT OF THE CHANGE

Executive Committee Conclusion No. 69 (XLIII) (1992),

• [I]n taking any decision ... States must carefully assess the fundamental character of the changes ... including the general human rights situation, as well as the particular cause of fear of persecution...an essential element in such assessment by States is the fundamental, stable and durable character of the changes,

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CHANGED CIRCUMSTANCE CLAUSE ASSESSMENT OF THE CHANGE

• Fundamental – „complete political change”, genuine end of hostilities =

elimination of root causes

• Enduring – longer observation before return (Vilvarajah!); 12-18

months– real peace, reconciliation starting

• Protection restored– more than mere physical security or safety. Existence of

a functioning government and basic administrative structures.

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CESSATION CLAUSES – PROCEDURE, EXCEPTION• Individual procedure should apply – except in mass influx and

temporary protection

• Burden of proof on the government

• „Compelling reasons” exception:

– In case of atrocious forms of persecution:ex-camp or prison detainees, survivors or witnesses of violence against

family members, including sexual violence, as well as severely traumatised persons frequently suffering from local population.

– „Application of the ‘compelling reasons’ exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2) refugees. This reflects a general humanitarian principle that is now well-grounded in State practice.” UNHCR Guidelines, 2003, point 21

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Exclusion clauses

Crime Against Peace

War Crime

Crime Against Humanity

Serious non-political crime

prior to admission

Acts contrary to the purposes and

principles of the UN

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EXCLUSION CLAUSES – FUNDAMENTALS

• Non-deserving cases should not get protection (avoid abuse of the system)

• War criminals and other serious criminals should not remain unpunished

_______________________________Threshold: „serious reasons for considering”

- less than balance of probabilities!? (G. Goodwin-Gill, p, 97) –still debated

_____________________________________________________________

Inclusion before exclusion? – debate ______________________________

Exclusion ≠ removal Protection against torture, etc („broad non-

refoulement”) remains!

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CRIME AGAINST PEACE, WAR CRIME, CRIME AGAINST HUMANITY

There is no accepted definition (Geoff Gilbert, p. 434)

• Crime Against Peace (Nürnberg, IMT Charter) = planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties...

• ICC: no definition of aggression

• War Crime (IMT, Geneva Conventions and 1977 protocols, ICC, Tribunals /ICTY, ICTR/)

– violations of the laws or customs of war• murder, ill-treatment or deportation to slave labour or for any other

purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity – IMT

– Now: much wider, grave breaches of the Geneva Conventions ICC: 50 crimes (see separate sheet)

• Crimes against Humanity (as in ICC): • murder, severe deprivation of physical liberty, torture, rape, and other inhumane

acts of similar character. .. if „... committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” defined to mean „a course of conduct involving the multiple commission of acts referred to... against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”

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AGRESSION AS DEFINED BY STATE PARTIES TO THE ICC, 2010

THE CRIME OF AGRESSIONArticle 8 bis of the Rome Statute: Crime of aggression = committing an

act of agression• 1. … means the planning, preparation, initiation or execution, by a

person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

• 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

• Any of the following acts, regardless of a declaration of war, shall … qualify as an act of aggression

(see next slide)

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ACTS OF AGRESSION– (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

– (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

– (c) The blockade of the ports or coasts of a State by the armed forces of another State;

– (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

– (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

– (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

– (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

(these are acts identified in the 1974 UN GA resolution on agression)

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JURISDICTIONAL ISSUESConditions for the court’s jurisdiction:

• The State committing (or whose nationals commit) it has not declared that it does not accept the court’s jurisdiction

• 30 states ratify the amendment of the Rome Statute + 1 year after the 30th ratification

+• Another decision to be taken by 2/3 of the State Parties after 2017

confirms the present decision+

• Upon the intitative of the prosecutor the Security Council determines that agression occurred

• or if the SC remains silent for 6 months the pre-trial chamber allows the prosecutor to proceed

provided the SC does not stop the prosecution (under Article 16 – for one year)

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The notes to this empty slide (view in „notes page” mode!) contain the definition of war crimes in the ICC

Statute

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SERIOUS NON-POLITICAL CRIME PRIOR TO ADMISSION

• Outside the country of refuge prior to [the individual’s] admission to that country as a refugee

TerrorismUNGA Res.53/108 on Measures to Eliminate International Terrorism “criminal acts intended or calculated to provoke a state of terror in

the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of political, philosophical, ideological, racial, ethnic, religious or other nature that might invoked to justify them”.

______________________________________________________Work in the UN on a comprehensive treaty still in progress

Debates: self determination - state forces in armed conflict

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TERRORISM –EU DEFINITION COUNCIL FRAMEWORK DECISION OF 13 JUNE 2002 ON COMBATING

TERRORISM (2002/475/JHA)

Art. 1 Terrorist offences and fundamental rights and principles1. … acts referred to below in points (a) to (i), …, which, given their nature or context, may seriously

damage a country or an international organisation where committed with the aim of:— seriously intimidating a population, or— unduly compelling a Government or international organisation to perform or abstain from

performing any act, or— seriously destabilising or destroying the fundamental political, constitutional, economic or social

structures of a country or an international organisation,shall be deemed to be terrorist offences:

(a) attacks upon a person’s life which may cause death;(b) attacks upon the physical integrity of a person;(c) kidnapping or hostage taking;(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility,

including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;

(e) seizure of aircraft, ships or other means of public or goods transport;(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or

chemical weapons, as well as research into, and development of, biological and chemical weapons;(g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human

life;(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effectof

which is to endanger human life;

(i) threatening to commit any of the acts listed in (a) to (h).

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SERIOUS NON-POLITICAL CRIME PRIOR TO ADMISSION

• No need for proof sufficient for a criminal trial, but there should be serious reasons for considering.

• It includes inchoate offences such as attempts, conspiracies and incitement.

• Difficulty: Is mere membership of a group adequate to exclude? Are all members complicit?

• Is constructive knowledge adequate to impose individual criminal responsibility?

• What if already served a punishment or long time passed?

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ACTS CONTRARY TO THE PURPOSES AND PRINCIPLES OF THE UN

• Only state leaders – or private persons (non- state actors)

• Terrorism: what definition?any national legal definition? UN definition?

• „Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights, would fall under this category.” UNHCR Guidelines, 2003

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PROTECTION BY OTHERS

GC 1 § C (5) D. This Convention shall not apply to persons who are at present receiving from

organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

UNRWA = United Nations Relief and Work Agency(established in December 1949, by a GA resolution, operational since 1 May

1950)

“UNRWA (the United Nations Relief and Works Agency for Palestine Refugees in the Near East) provides assistance, protection and advocacy for some 4.8 million registered Palestine refugees in Jordan, Lebanon, Syria and the occupied Palestinian territory, pending a solution to their plight.” http://www.un.org/unrwa/overview/index.html - visited 25 February 2011

http://www.un.org/unrwa/overview/index.html

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THE BOLBOL CASE JUDGMENT OF THE (GRAND CHAMBER) OF 17 JUNE 2010 (REFERENCE FOR A PRELIMINARY RULING FROM THE FŐVÁROSI BÍRÓSÁG (REPUBLIC OF HUNGARY)) — NAWRAS BOLBOL V BEVÁNDORLÁSI ÉS ÁLLAMPOLGÁRSÁGI HIVATAL

(CASE C-31/09)

• Ms Bolbol’s claim: coming from Gaza to Hungary, unable to return there she ought to be recognised automatically as a Convention refugee under 1 D 2nd para. – The authority denies that the para entitles to automatic recognition – it only entitles to application for status and makes the GC applicable

•„According to Ms Bolbol, the purpose of Article 1D is to make clear that where a person registered or entitled to be registered with UNRWA resides, for any reason, outside UNRWA’s area of operations and, for good reason, cannot be expected to return there, the States party to the Geneva Convention must automatically grant him refugee status.” para 31 of the judgment

• The authority denies automatic entitlement and insists that the case must be subjected to RSD (if not excluded right away)

GC 1 D 2nd para:„When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.”

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BOLBOL

For the purposes of the Qualifications non-applicability rule

• A person receives protection or assistance from an agency of the United Nations other than the United Nations High Commissioner for Refugees,

• when that person has actually availed himself of that protection or assistance

• In essence: middle road (closer to H. authorities: if not actually availing of the UNRWA assistance then the Convention is applicable as to an asylum seeker – without automatic recognition)

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THANKS!

BOLDIZSÁR NAGY

E-mail: [email protected] www.nagyboldizsar.hu

CEU IRES Budapest, 1051

Nádor u. 9. Tel.: +36 1 242 6313, Telefax: +36 1 430 0235

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