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Cosmopolitan Pariahs: The Moral Rationale for Exclusion under Article 1F

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Colin Grey reconstructs the moral rationale for exclusion under article 1F of the 1951 Convention relating to the Status of Refugees.

Image courtesy of interviewee. August 15, 2024

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This video discusses Article 1F of the 1951 Convention Relating to the Status of Refugees, which stipulates that individuals who have committed serious domestic or international crimes, such as war crimes or crimes against humanity, are excluded from receiving refugee protection. This video exclusion raises questions about the nature of international refugee law as either a humanitarian or human rights issue.

The author argues that refugee protection should be considered primarily a matter of humanitarianism rather than human rights, as the logic behind excluding criminals is based on the notion of undeserving. This video creates a tension within the convention, as human rights are typically viewed as inalienable, irrespective of an individual's moral standing.

The paper posits that international refugee law embodies a deep-seated ambiguity, fluctuating between concepts of justice and benevolence. By maintaining Article 1F, it implies that states have discretion in deciding whom to provide protection to, thereby framing refugee status as contingent upon moral judgments about an individual’s past actions.

The author calls for further exploration into the rationale behind exclusion and alternative responses to criminality in the context of refugees, emphasizing the need for reform in international refugee law to address these complexities. Overall, it advocates for a reevaluation of how refugee protection is conceptualized, suggesting a need to bridge the gap between humanitarian considerations and human rights principles.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Article one f is a provision

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that's in the 1951 convention relating

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to the status of refugees.

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And basically what Article one F says is

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that people who've committed certain serious domestic

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or international crimes, you know, like arson

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or a war crime,

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or a crime against humanity, will be,

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will not receive refugee protection under the 1951

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convention relating to the status of refugees.

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So the 1951 convention is important

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because it is the most widely recognized, source

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of international obligations towards refugees.

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Uh, what the 1951 convention says is that,

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you are a refugee if you face persecution, for one

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of several discriminatory grounds like race or religion.

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So the effect, the upshot of Article one F is

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that if you've committed a crime like arson

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or you've committed a war crime, even if you face

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persecution, for race or religion

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or another ground, you will not receive refugee protection.

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The 1951 convention will not apply to you.

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And the reason that that's urgent

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or important is that persecution is usually defined in terms

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of the serious

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or systemic violation of basic human rights, right?

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So someone, if they're being tortured

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or if they're being raped, they're being persecuted, right?

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And so the upshot of Article one F is that someone who,

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is that someone who's committed a crime

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may not receive international protection against these

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serious forms of persecution.

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And the reason that gives rise to a question, right?

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An urgent question is that what that may mean is

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that the International Refugee protection regime ends up,

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treating people worse than systems of sort

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of domestic criminal justice academics.

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U-N-H-C-R, the courts have all, appealed

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and I would say principally appealed to this idea

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of undeserving to answer this important question about why

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we exclude criminals from refugee protection, right?

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So it's said that,

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and it has been said ever since the convention was

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negotiated, that the reason that, article one F is there

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to exclude criminals from refugee protection is

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because they're undeserving

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or unworthy of refugee protection, right?

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And so this raises all sorts of puzzles.

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Like one is that the idea of undeserving as,

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you just said, is a little fuzzy around the edges.

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And the other reason is that,

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we don't normally think about human rights as things

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that we deserve or not, right?

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Normally you are entitled to human rights simply,

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or you're thought to be entitled to human rights simply

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because you are a human right.

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Uh, your entitlement to human rights,

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does not depend on your goodness

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or badness, moral or otherwise.

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So it's odd that if we think

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of international refugee protection as a form

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of human rights protection, it's odd that we would withhold

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that protection from people based on their

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moral badness, right?

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Or their, undeserving. So there's, this

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Ends up being, this tension sort

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of embedded in the 1951 convention between exclusion

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and the preferred way of thinking about refugee protection,

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which is as a form of, human rights protection.

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The core argument that I make in the paper is that,

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you know, we end up either having to choose

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between thinking about international human rights

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protection, sorry, international refugee protection

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as a form of human rights protection and exclusion,

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because exclusion cannot be squared with this idea

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of thinking about international refugee protection as a form

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of human rights protection.

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And instead, if we're going to sort of accept,

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article one F and its presence in the 1951 convention

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and accept, its rationale as being this idea

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of undeserving this, then we need to accept also,

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that, the 1951 convention

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probably shouldn't be thought of first

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and foremost as a form of, as a human rights instrument,

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but rather as an instrument that provides a form

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of human humanitarian protection, right?

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So the article is trying

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to force us into thinking about sort

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of the hard choices we have to make if we continue

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to have Article one F sort of embedded into the,

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in the 1951 convention, there's this deep seated ambiguity,

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within international refugee law, about whether

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or not refugee protection is a matter of human rights

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or humanitarianism

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or as I also put it in the article, whether

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or not it's a matter of justice or a benevolence

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or goodwill, right?

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And if you look at the various official documents

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through which, international refugee law has been

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developed or explained, there seems

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to be a significant number of references both

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to human rights

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and sort of human rights related words, on the one hand

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and humanitarianism

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and humanitarian related words on the other.

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And just to give you an example, if you look at the preamble

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to the 1951 convention, it both recognizes the need

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to ensure the fundamental human rights of refugees,

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but also refers to refugee protection as a social

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and humanitarian problem, right?

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So one of the things I argue in the paper is

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that there's this deep seated ambiguity

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and the idea of refugee protection being more a matter

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of humanitarianism than, as opposed to human rights,

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is something that's potentially unattractive, right?

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So that's something that's important to note.

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Uh, it suggests that states will have discretion

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or wiggle room in deciding whom to protect

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and whom not to protect.

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Uh, and so that's the import of arguing that,

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our exclusion under Article one F can only be reconciled

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with a view of the international,

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of the international refugee law as a form

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of humanitarian protection.

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Blame can be thought of when we think of blame in sort

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of our common everyday usage as an emotion

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that's associated with punishment.

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When we blame someone, we sometimes want

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to punish them in some way, either kind of in our

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official institutional institutional relations

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or in our interpersonal relations.

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Uh, but the philosopher TM Scanlan has argued

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that blame can also enco encompass certain non-punitive

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emotions and reactions such as the withdrawal of trust,

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reluctance to enter friendships, the reluctance

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to help people with their projects.

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Uh, so he gives the example,

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and I think it's quite a compelling example

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of an abusive spouse that you know

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of in your neighborhood, right?

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So if you, if there is someone in your neighborhood

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who knew, who knew was abusing their wife,

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it would be appropriate to blame them

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and to want them to be punished for sort of criminal abuse,

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but it would also be appropriate

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and in fact, required to sort of withhold trust from them

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to not become their friends,

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to not help them out with things, right?

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So to not go duck hunting

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or to help them wash their car, right?

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And so the argument in the paper is that, that's how

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to understand exclusion under Article one F.

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It's as a way of in withholding sort of beneficence

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humanitarianism goodwill from people who've committed these

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serious crimes, right?

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And specifically what it is, it's, amounts

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to withholding a specific form of friendship from them,

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the civic friendship that sort of is entailed

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by the relationship of being citizens

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of the same country together, right?

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And so when you see exclusion that way, it is,

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compatible with the idea of humanitarianism benevolence

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or goodwill and not with the idea

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of human rights protection.

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I see the article, of course, I see the article

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as addressing an important issue.

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Um, and what I think it should force sort

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of refugee scholars to do, me among them, is to do more

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to explore the rationale for exclusion, whether

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or not exclusion can be justified sort

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of on this understanding that's set out in the paper

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or maybe on some other justification.

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Uh, and if it can't be justified to ask questions about

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what would be the proper response to criminal wrongdoing

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by people who otherwise would be refugees, right?

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So if not exclusion, what then should we do?

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And there, so there are obvious important implications

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to sort of how we might think about reforming

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international refugee law.

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And there are also sort of work that should be done in terms

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of the interpretation and application of that law.

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