Written by: Nadira Saraswati
Image Credit: Tom Barrett
Imagine your town was taken over by a terrorist group, forcing you to take up arms and join their forces if it meant it would guarantee the safety of your family. You then agree, reluctantly – anything to live another day. The security situation deteriorates quickly, your house is in ruins, the town shuts down completely. You realize the entire population had fled, including your family, who you realize is now nowhere to be seen. And so, you make the journey to freedom and defect from the terrorist group. You reach a host state and seek asylum but were told by the authorities that they have serious suspicions you have committed war crimes back in your country and you are threatened with deportation. What options do you have?
This story is one of the many untold stories that asylum seekers face when trying to obtain refugee status. What makes a person a refugee if not their circumstances? By signing the UN Refugee Convention, signatory countries commit themselves to provide protection to persons who have fled their country for fear of being persecuted. But what if that person, prior to claiming refugee status, committed crimes or had been associated with terrorist groups – are they excluded from protection despite qualifying otherwise?
The exclusion clause in many refugee conventions deems a criminal who faces trial and flees the country to escape jail “not necessarily a refugee.” However, at the same time, conventions recognize that a person accused of crimes, whether proven innocent or guilty, may also be persecuted for political or other reasons, and thus may not necessarily be excluded from refugee status. For individuals forced into such circumstances, one must disprove criminal intent and provide evidence for innocence before a trial in order to qualify for refugee status. However, this might not be as easy as it sounds in the context of forced displacement where criminal justice services may be inaccessible -- with neither legal representation nor the resources for case management and evidence discovery. What then happens to individuals stuck in the process, especially if they happen to be both a victim of violence and a perpetrator albeit unwilling?
In order to understand the complexity behind this issue, we must re-examine how the international refugee system recognizes refugees. The reason why exclusion clauses exist is to preserve the integrity of the asylum concept, prevent impunity and ensure states fulfill their obligations to investigate war crimes and human rights violations as to assure that suspects are prosecuted, tried and punished. But could a humanitarian agency mandated to provide protection to those in need be causing impunity by doing its job? Furthermore, with difficulty proving criminal conduct beyond suspicions and unverifiable witness accounts, the application of the exclusion clause could easily be misused to justify dismissing claims for refuge by host communities.
The dual identity individuals in such circumstances carry, whether or not they actually commit crimes, cause them to face two-tiers of discrimination: from being labeled firstly as perpetrators, and secondly, if they are lucky, refugees. Outside the context of forced displacement, the label criminal already carries such a weight – imagine how they are treated within a forced displacement context. Even if a person successfully identifies as a refugee and is granted status, in camps or host communities, they might be subjected to stigma from their peers for their history or even their association to an ethnic, religious, or social group historically identified as perpetrators.
Reflecting on the case of perpetrator-victims, it is important to understand that guilt and innocence exist in a spectrum – sometimes it’s not one or the other, but rather a messy mix of the two. Not all persons forced into displacement are victims, some are perpetrators as well, whether directly or indirectly. But do they not also deserve refuge once they go through the criminal justice system and undergo transformative rehabilitation? They do not need further dehumanization, especially if we abide by the core principles of the criminal justice system: to help perpetrators of crime recover and be part of society again. The current international refugee system does not make room for such circumstances.
How then would we prevent their recidivism if we deny them basic human rights we afford to others also struggling with forced displacement as they are? Not understanding this dynamic further isolates already at-risk populations from access to resources and services to combat re-radicalization.
Taking the context of instability, fragile environments, coercion, and poverty out of the cases of citizens turned fighters or terrorists fleeing war zones reduces them to criminals deserving of punishment. In this conversation, we must recognize that the reductionist approach of categorizing asylum seekers in a binary perpetrator vs. victim groups is a problem. Humans are so much more complex than what the media portrays.
Furthermore, victimhood tends to be attributed to people who are perceived as inferior within a structure of agency. In pushing for a victim narrative to identify who qualifies for protection as refugees we inadvertently uphold pejorative biases in which one sees those with refugee status as nothing but victims and inherently hold no agency. They are more than their circumstances.
Should asylum-seekers then be defined by their “criminal” past, their “ambiguous” present, or their eventual future in which they are kept from getting the help they need? Is it inherently immoral to help alleged former war criminals to secure their right to refuge? This in no way excuses their crimes: their victimhood does not absolve them from accountability. Considerations should be made to include the nature and extent of compulsion in committing the crime, degree of harm to third parties, and the agency of the asylum-seeker at the time of the offense to avoid inflicting harm. A way forward would be to identify alternative responses that take into account their eligibility for refugee status, by giving them access to services for refugees, without waiving off accountability, by letting them go to alternate paths to justice after being deemed fit to stand trial.
There is a need to reassess how exactly we can balance between the integrity of the international refugee regime while also providing protection to the most vulnerable. But ultimately, this should start with understanding the complex experiences that refugees face and what it means in the greater context of criminal justice and counterterrorism.