Complicity, Exclusion, and the “Unworthy” in Refugee Law

When is an applicant for refugee status “unworthy” of asylum? It used to be thought this question was tolerably clear. But in the current febrile atmosphere of post-9/11, where an avalanche of new international instruments have been drawn up in the “War on Terror” to tackle “terrorism”, it is anything but clear. Traditionally understood concepts of crimes against peace, war crimes, or crimes against humanity are also in a state of flux. The law is worryingly moving towards a concept of “unworthiness for asylum”, which, unless arrested by the courts, looks set to undermine the institution of refugeehood itself. As States develop new counter-insurgency measures amid new forms of warfare, “complicity”, by way of association in the nefarious acts of others, is now deemed by Governments to be enough to reject genuine asylum-seekers. This article discusses the interpretation of the exclusion clauses of Article 1F of the Refugee Convention in the case-law of Germany, the United Kingdom, Canada, and Australia. These are countries with strong human rights traditions and commitments to the Rule of Law, and with a proud history of defending refugee rights. Whether they will be able to do so in the future, in the changed political climate of the last decade, is the question