The new Michigan Guidelines on the Exclusion of International Criminals, resulting from a colloquium held in March 2013 at the University of Michigan, attempt to define the circumstances in which an international criminal can be excluded from protection by the Refugee Convention.
Article 1(F)(a) of the Refugee Convention excludes from refugee status ‘… any person with respect to whom there are serious reasons for considering that… he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.’
To deny refugee status to a person who has a well-founded fear of persecution in their country of origin is a decision with potentially life-threatening consequences. The Guidelines therefore urge immigration authorities to exercise caution. According to the Guidelines, the objective of this exclusion clause is ‘to exclude persons whose international criminal conduct means that their admission as a refugee threatens the integrity of the international refugee regime’.
Only certain crimes justify an exclusion from refugee status, for example the killing of members of an ethnic group with the intention of destroying that group (one form of genocide). These crimes must be defined in an internationally-recognised instrument, such as the Rome Statute of the International Criminal Court. Decision makers must also look beyond the text of the instruments to interpretations of the definitions of crimes in specific contexts by judicial authorities, both domestic and international, in order to gain a fuller understanding of their meaning and application in comparable factual circumstances. Decision makers are warned by the Guidelines not to loosely interpret the criminal offences defined in international instruments. Only a strict interpretation of criminal conduct will prevent wrongful exclusions of refugee status.
A vague connection between the applicant for refugee status and an international crime is not enough, nor will the mere suspicion of guilt suffice for exclusion. There must be ‘serious reasons for considering’ that the applicant is an international criminal. This threshold is not as high as ‘beyond reasonable doubt’, due to practical difficulties in obtaining the necessary evidence. However, to prevent miscarriages of justice with tragic consequences, the Guidelines urge a decision maker to have ‘clear and convincing’ evidence before excluding an asylum seeker from protection by the Refugee Convention. In addition, as in the domestic context, international crimes are only committed ‘if the relevant conduct was criminal at the time of its commission’. Crimes pre-dating a new instrument cannot be prosecuted retroactively.