Article

The application and interpretation of international humanitarian law and international criminal law in the exclusion of those refugee claimants who have committed war crimes and/or crimes against humanity in Canada

James C. Simeon

• International journal of refugee law, Vol. 27, issue 1, March 2015, p. 75-106

English

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Refugee status determination is difficult by its very nature but it becomes even more complex when the issue of exclusion under article 1F(a) is raised and it is alleged that there are ‘serious reasons for considering’ that the applicant is ‘guilty of having committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments that have been drawn to make provision for such crimes’. The ‘War Crimes and Refugee Status’ Research Project’s Canadian jurisprudence dataset, consisting of 98 article 1F(a) cases, reveals that more than 91 per cent of these cases cite international humanitarian law (IHL) or international criminal law (ICL), but only 13 per cent of the cases cite UNHCR guidelines or directives. Interestingly, nearly two-thirds, 65.8 per cent, of these appeal cases are denied. Five of the most frequently cited judgments in this sample of cases were Ramirez, Moreno, Sivakumar, Harb, and Pushpanathan, in that order. After analyzing these five appeal court judgments in depth, seven legal principles were identified respecting the application and interpretation of IHL and ICL in Canada. The new test for exclusion under article 1F(a) in Canada, ‘voluntary, significant and knowing contribution,’ leaves a broad area of discretion for refugee law decision makers. This will cause, undoubtedly, legal contention in the appellate courts as the article 1F(a) cases make their way through the judicial process in Canada.