NON-APPLICATION OF THE CONVENTION - CESSATION – EXCLUSION – PROTECTION ELSEWHERE

1. NON-APPLICATION OF THE CONVENTION-CESSATION – EXCLUSION – PROTECTION ELSEWHERE Presented by Boldizsár Nagy, Brussels, ULB Certificate Course, 2011

2. Non- application of the Convention Cessation clauses Protection by others Exlusion clauses

3. Cessation clauses Voluntary act of the refugee Changed/ceased circumstances Re-acquisition of (old) nationality 1 § C (2) Re-availment of protection 1 § C (1) Re-establishment in country of origin 1 § C (4) Acquisition of new nationality 1 § C (3)

4. 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 -???

5. 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

6. Changed circumstance clauseAssessment of the change Executive Committee Conclusion No. 69 (XLIII) (1992), • [I]n taking any decision ... States must carefully assess the fundamentalcharacter 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,

7. 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.

8. 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

9. Exclusion clauses Crime Against Peace War Crime Crime Against Humanity Acts contrary to the purposes and principles of the UN Serious non-political crime prior to admission

10. 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!

11. 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.”

12. Agression as defined by state parties to the ICC, 2010The crime of agression Article 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 controlover or to direct the political or military action of a State, of an act of aggression which, byits 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 bya State against the sovereignty, territorial integrity or political independence of anotherState, or in any other manner inconsistent with the Charter of the United Nations. • Any ofthe following acts, regardless of a declaration of war, shall … qualify as an act of aggression(see next slide)

13. Agression as defined by state parties to the ICC, 2010Acts of agression • (a) The invasion or attack by the armed forces of a State of the territory ofanother State, or any military occupation, however temporary, resulting from such invasionor 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 anotherState 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, ormarine and air fleets of another State; • (e) The use of armed forces of one State which are within the territory of anotherState with the agreement of the receiving State, in contravention of the conditions providedfor in the agreementor 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 thedisposal 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 ormercenaries, which carry out acts of armed force against another State of such gravity as toamount to the acts listed above, or its substantial involvement therein. (these are acts identified in the 1974 UN GA resolution on agression)

14. Agression as defined by state parties to the ICC, 2010jurisdictional issues Conditions 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)

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

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

17. Serious non-political crime prior to admission • Outside the country of refuge prior to [the individual’s] admission to that country as a refugee Terrorism UNGA 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

18. Terrorism –EU definition COUNCIL FRAMEWORK DECISIONof 13 June 2002on combating terrorism(2002/475/JHA) Art. 1 Terrorist offences and fundamental rights and principles 1. … acts referred to below in points (a)to (i), …, which, giventheir nature or context, may seriously damage a country or aninternational organisation where committed with the aim of: — seriously intimidating a population, or — unduly compelling a Government or international organisationto perform or abstain from performing any act, or — seriously destabilising or destroying the fundamental political,constitutional, economic or social structures of a countryor 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 publicfacility, a transport system, an infrastructure facility,including an information system, a fixed platform locatedon the continental shelf, a public place or privateproperty likely to endanger human life or result in majoreconomic loss; (e) seizure of aircraft, ships or other means of public orgoods transport; (f) manufacture, possession, acquisition, transport, supplyor use of weapons, explosives or of nuclear, biologicalor chemical weapons, as well as research into, and developmentof,biological and chemical weapons; (g) release of dangerous substances, or causing fires, floodsor explosions the effect of which is to endanger humanlife; (h) interfering with or disrupting the supply of water,power or any other fundamental natural resource the effectofwhich is to endanger human life; (i) threatening to commit any of the acts listed in (a) to (h).

19. 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?

20. 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

21. 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

22. 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 theposition of such persons being definitively settled in accordance with therelevant resolutions adopted by the General Assembly of the United Nations,these persons shall ipso facto be entitled to the benefits of this Convention.”

23. 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)

24. THANKS! BOLDIZSÁR NAGY E-mail: nagyboldi@ludens.elte.hu www.nagyboldizsar.hu CEU IRES Budapest, 1051Nádor u. 9. Tel.: +36 1 242 6313, Telefax: +36 1 430 0235