3. Sheldrake v. DPP [2004] UKHL 43, para. 51, per Lord Bingham.

4. See UNHCR Statute, GA Res. 428 (V), Annex, GAOR(United Nations), 5th Sess., Supp. No. 20, p. 46, UN Doc. A/1775 (1950): ‘1. The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute ….’

5. Although in the interests of balance, it should be pointed out that some of those alleged to have been involved in the attacks on the United States embassies in Nairobi, Kenya and in Dar es Salaam, Tanzania had been granted asylum in the United Kingdom. See In re Al-Fawwaz (Appellant) (Application for a Writ of Habeas Corpus) (on Appeal from a Divisional Court of The Queen's Bench Division) et al. [2001] 1 All ER 545, [2002] 1 AC 556, paras. 1–5.

6. See Helton, A.C., The Price of Indifference (Oxford, Oxford University Press 2002) p. 183CrossRefGoogle Scholar.

7. Adopted on 28 July 1951, 189 UNTS p. 150Google Scholar. As amended by the 1967 Protocol, 606 UNTS p. 267Google Scholar. See also Statute of the Office of the United Nations High Commissioner for Refugees 1950, supra n. 4. Exclusion is dealt with in para. 7(d): ‘Provided that the competence of the High Commissioner as defined in paragraph 6 above shall not extend to a person: … (d) In respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.’ The OAU Convention on the Specific Aspects of Refugee Problems in Africa 1969 provides similarly in Art. 1(5): ‘the OAU Convention also includes serious non-political crimes as a ground for cessation in Article 1.4(f)’, 1000 UNTS p. 46Google Scholar.

8. See UNHCR Guidelines on International Protection: Application of the Exclusion Clauses, UN Doc. HCR/GIP/03/05 (2003), reprinted in 15 IJRL (2003) p. 492. See also the Background Note issued at the same time, reprinted in 15 IJRL (2003) p. 502; Gilbert, G., ‘Current issues in the application of the exclusion clauses’, in Feller, E. et al. , eds., Refugee Protection in International Law (Cambridge, Cambridge University Press 2003) pp. 425 et seq.CrossRefGoogle Scholar; Supp. 1 of 12 IJRL (2000) on ‘Exclusion from protection: Article IF of the UN Refugee Convention and Article 1(5) of the OAU Convention in the context of armed conflict, genocide and restrictionism’. See also Art. 33(2) of the Refugee Convention 1951, which deals with the case where someone who is a refugee commits a particularly serious non-political crime. It allows for the removal of non-refoulement protection:

‘Article 33. – Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’

9. See Wolfrum, R., ‘Purposes and principles’, in Simma, B., ed., The Charter of the United Nations: A Commentary (Oxford, Oxford University Press 1995) pp. 49 et seqGoogle Scholar.

10. See Background Note to UNHCR Guidelines on Exclusion, supra n. 8, para. 46. Given that Art. 14(2) of the Universal Declaration of Human Rights 1948 includes a similar phrase, there is some merit in this argument. See also Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982 at 983, which suggests that the purpose of Art. 1F(c) ‘is to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting’.

11. See para. 3(f) and (g). See also SC Res. 1368 (2001), and SC Res. 1377 (2001), calling on all states to deny safe haven to terrorists, and GA Res. 56/1 (2001).

12. See UNHCR, ‘Addressing security concerns without undermining refugee protection, UNHCR's perspective’, Position Paper, 29 November 2001, paras. 3 and 12.

13. See Statement to the Sixth Committee by Søren Jessen-Petersen, 14 November 1996, pointing out that Art. 1F(c) is rarely used and overlaps with Art. 1F(a).

14. Part of crimes against humanity under Art. 1F is the crime of genocide which has not been altered from its 1948 Convention definition in any of the recent Statutes: see Art. 4 of the ICTY Statute, adopted by SC Res. 827 (1993), 32 ILM (1993) p. 1192Google Scholar; Art. 2 of the ICTR Statute, adopted by SC Res. 935 (1994) and SC Res. 955 (1994), reprinted in 5 Criminal LF (1994) p. 695; and Art. 6 of the ICC Statute, done at Rome, 17 July 1998, 37 ILM (1998) p. 999Google Scholar, as corrected by the procèsverbaux of 10 November 1998 and 12 July 1999.

15. Acknowledged by the ICTY in Prosecutor v. Tadić, Case No. IT-94–1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, paras. 140–41. See also Bassiouni, M. Cherif, ‘Crimes against humanity: the need for a specialized convention’, 31 Columbia JTL (1994) p. 457Google Scholar.

16. Art.7(2)(a) of the Rome Statute defines such attacks as: ‘[A] course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack ….’ Given that crimes against humanity have been explicitly removed from the sphere of armed conflicts, ‘attack’ could not be restricted to the meaning ascribed in Art. 49 of 1977 Protocol 1 to the 1949 Geneva Conventions, 1125 UNTS p. 3Google Scholar. It is arguable that the attack on the Pentagon on September 11 2001 would not qualify as a crime against humanity because it was not on a ‘civilian’ population.

17. Art.7(2)(a) and (i) Rome Statute.

18. For the traditional analysis of the place of persecution in crimes against humanity, see Fenrick, W., ‘The prosecution of war criminals in Canada’, 12 Dalhousie LJ (1989) pp. 256 at 266 et seqGoogle Scholar.

19. See Prosecutor v. Tadić, supra n. 15, paras. 140–141. See also Fédération Nationale des Déportés et Internés Résistants et Patriotes et al. v. Barbie, 78 ILR (1985) p. 125Google Scholar.

20. Probably the best example is T v. SSHD [1996] 2 All ER 865. See also Ahani v. Minister for Employment and Immigration [1995] 3 FC 669, and Singh v. Minister for Immigration and Multicultural Affairs [2000] FCA 1125 (Australian Fed. Ct.).

21. See In re Pavan [1927–28] Ann. Dig. 347 at 349: ‘Homicide, assassination and murder, is one of the most heinous crimes. It can only be justified where no other method exists of protecting the final rights or humanity’ [emphasis added].

22. ETS No 5.

23. Chahal v. United Kingdom, Judgement of 15 November 1996, 23 EHRR (1997) p. 413Google Scholar. Mr Chahal was alleged to be a Sikh terrorist fighting for an independent Khalistan.

24. 23 ILM (1984) p. 1027Google Scholar and 24 ILM (1985) p. 535Google Scholar.

25. See Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3. See also A-415–99, Federal Court of Appeal, 18 January 2000 <http://reports.fja.gc.ca/fc/src/shtml/1996/pub/v2/1996fca0106.shtml>.

26. On the need for governments to be seen to be doing something, see Gilbert, G., ‘The “law” and “transnational terrorism”’, 26 NYIL (1995) p. 3CrossRefGoogle Scholar.

27. SC resolutions, supra n. 11. See also the earlier SC Res. 1269 (1999) that also called on states to make sure that those seeking refugee status had not previously participated in terrorist acts.

28. EU anti-terrorism measures of 27 December 2001, Council Decision 2001/927/EC and Common Positions 2001/930/CFSP and 2001/931/CFSP, OJ (2001) L 344/83, 90 and 93. See also the EU Council Framework Decision on the European Arrest Warrant (EAW), 13 June 2002, OJ (2002) L 190/1. Para. 12 of the preamble to the EAW provides as follows:

‘Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.’

29. See Statewatch analysis Nos. 8 and 14 <http://www.statewatch.org/news/2002/jan/refugee.pdf> and <http://www.statewatch.org/news/2002/sep/analy14.htm>, respectively.

30. Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, Annex 1 to Interinstitutional File: 2001/0207 (CNS), Asile 23 8043/04, 27 April 2004.

31. Defined in Art. 15 as those facing serious harm:

‘Serious harm consists of: (a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in his or her country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict’ [footnote omitted].

32. Soering v. United Kingdom, Judgement of 7 July 1989, 11 EHRR (1989) p. 439Google Scholar and Chahal v. United Kingdom, 23 EHRR (1997) p. 413Google Scholar.

33. Declaration contained in a Note Verbale from the Permanent Representation of the UK, 18 December 2001, registered by the Secretariat General on 18 December 2001 <http://conventions.coe.int/Treaty/EN/v3MenuDecl.asp>. See also the criticism of detention without trial by the Council of Europe Commissioner for Human Rights, Alvaro Gil-Robles in Bowcott, O., ‘Detention of terror suspects criticised’, in The Guardian, 12 11 2004, p. 8Google Scholar.

34. On double balancing, see Gilbert, supra n. 8, pp. 453 et seq. The issue of not being able to return persons who would face a real risk of torture or inhuman or degrading treatment or punishment had been recognised before September 11 2001, see Youssef v. Home Office [2004] EWHC 1884 (QB) 30 July 2004, and 14 Statewatch Bulletin (No. 5, 2004) p. 22Google Scholar.

35. Cf.Gurung v. SSHD IAT Starred [2002] UKIAT 4870, 14 October 2002.

36. See the aut dedere, aut judicare clauses in the multilateral anti-terrorism treaties: Art. 7 Convention for the Suppression of the Unlawful Seizure of Aircraft 1970, 10 ILM (1971) p. 133Google Scholar; Art. 7 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971, 10 ILM (1971) p. 1151Google Scholar; Art. 7 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents 1973, 13 ILM (1974) p. 42Google Scholar; and Art. 8 International Convention Against the Taking of Hostages 1979, 18 ILM (1919) p. 1456Google Scholar.

37. 28 ILR (1958) pp. 341 at 342Google Scholar

38. 28 ILR (1959) p. 343Google Scholar.

39. See, for instance, the Amsterdam Seminar on Article 1F and Afghan Asylum Seekers: Towards a Common Strategy, 8–9 June 2000, organised by the Dutch Immigration and Naturalisation Service on behalf of a High Level Working Group of the EU, ‘Conclusions and recommendations’, sec. 5: Legal/ criminal proceedings to be applied if Article 1F is applied, and Dutch State Secretary of Justice, ‘Section IF of the Convention on Refugees’, 6302011/97/DVB, 19 November 1997, p. 46.

40. There are other difficulties, however, in common law jurisdictions that rely so heavily on oral evidence from percipient witnesses, see the UK Declaration, supra n. 33

41. Public Law 107–56, 26 October 2001. The term ‘USA Patriot Act’ means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.

42. For a short period starting in March 2003, the US Department of Homeland Security put in place ‘Operation Liberty Shield’. One aspect of this related to indefinite detention of applicants for refugee status from 33 countries and territories. According to Human Rights First's Asylum Protection News # 15, 15 May 2003, applicants for refugee status from Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Philippines, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Thailand, Tajikistan, Tunisia, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan and Yemen, as well as Gaza and the West Bank, were all to be detained, <http://www.humanrightsfirst.org/asylum/torch-light/newsletter/newslet_15.htm>. However, with little public fanfare, ‘Operation Liberty Shield’ was officially terminated at the end of April 2003, see Human Rights First report titled ‘In liberty's shadow; U.S. detention of asylum seekers in the era of homeland security’ (2004) <http://www.human-rightsfirst.org/about_us/events/Chasing_Freedom/asylum_report.htm>. Unfortunately, the detention of applicants for refugee status continues under other mechanisms.

43. Illegal Immigration Reform and Immigrant Responsibility Act 1996, Public Law 104–208 (hereafter, IIRIRA 1996)

44. Author's footnote: The consequences of the expedited removal and detention policy are highlighted by the death in custody of an 81-year-old pastor from Haiti, who applied for asylum on arrival at Miami airport. Jaggi, M., ‘Preacher's death prompts protest’, in The Guardian, 20 11 2004, p. 17Google Scholar,

45. Human Rights First report, supra n. 42, p. 17. See also Demore v. Kim, 538 US 510 (2003).

46. See Human Rights First, Asylum Protection News # 29, 10 August 2004.

47. 8 CFR 1003.1, especially subpara. (e)(4)(ii):

‘(ii) If the Board member determines that the decision should be affirmed without opinion, the Board shall issue an order that reads as follows: “The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 CFR 1003.1(e) (4).” An order affirming without opinion, issued under authority of this provision, shall not include further explanation or reasoning. Such an order approves the result reached in the decision below; it does not necessarily imply approval of all of the reasoning of that decision, but does signify the Board's conclusion that any errors in the decision of the immigration judge or the Service were harmless or nonmaterial.’

48. Cf.Art. 31(2) implies that simply seeking refugee status is not a justification for detention: ‘The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.’ The Executive Committee has criticised the over use by states of detention in various Conclusions: see Conclusions No. 44 (XXXVII) 1986 on the Detention of Refugees and Asylum Seekers; 85 (XLIX) 1998 on International Protection, especially paras, (cc)-(ee); 89 (LI) 2000 on International Protection; and 91 (LII) 2001 on Registration of Refugees and Asylum Seekers.

49. GA Res. 2200A (XXI) of 16 December 1966, UN Doc. A/6316 (1966), 999 UNTS p. 171Google Scholar. Art. 9 ICCPR provides:

‘ 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.’

Art. 2 ICCPR provides:

‘ 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ [emphasis added].

50. See s. 34D ASIO.

51. Ss. 34TA and 34U ASIO.

52. The MV Tampa, a Norwegian registered container ship, rescued several hundred persons from Asia, including Afghanistan and Sri Lanka, who were on board a small vessel between Indonesia and north Australia. They wanted to put them ashore on Christmas Island, but the Australians refused. Eventually, after intensive negotiations, New Zealand and Nauru agreed to let them enter for processing. See Bostock, C.M.-J., ‘The international legal obligations owed to the asylum seekers on the MV Tampa’, 14 IJRL (2002) p. 279CrossRefGoogle Scholar; Schloenhardt, A., ‘To deter, detain and deny: protection of onshore asylum seekers in Australia’, 14 IJRL (2002) p. 302CrossRefGoogle Scholar; Pallis, M., ‘Obligations of states towards asylum seekers at sea: interactions and conflicts between legal regimes’, 14 IJRL (2002) p. 329CrossRefGoogle Scholar; Willheim, E., ‘MV Tampa: the Australian response’, 15 IJRL (2003) p. 159CrossRefGoogle Scholar; Edwards, A., ‘Tampering with refugee protection: the case of Australia’, 15 IJRL (2003) p. 192CrossRefGoogle Scholar; Magner, T., ‘A less than ‘Pacific’ solution for asylum seekers in Australia’, 16 IJRL (2004) p. 53CrossRefGoogle Scholar.

53. See the Migration Act 1958 (Cth) as amended <http://www.austlii.edu.au/>.

54. See the Temporary Safe Haven Visa regime set out in the Migration Act 1958 (Cth), ss. 37A, 91K and 91L. If the applicant for refugee status has spent seven days in a country prior to arrival in Australia, then s/he will not be eligible for any protection, see Subdivision AK of the Migration Act 1958 (Cth).

55. S. 5(1) Migration Act 1958 (Cth).

56. Ss. 176 et seq. Migration Act 1958 (Cth).

57. Bakhtiyari v. Australia, Communication No. 1069/2002, UN Doc. CCPR/C/79/D/1069/2002 (2003); see also Baban v. Australia, Communication No. 1014/2001, UN Doc. CCPR/C/78/D/1014/ 2001 (2003) and C v. Australia, Communication No. 900/1999, UN Doc. CCPR/C/76/D/900/1999 (2002). While the Human Rights Committee has found a violation of Art. 9(4) as well as Art. 9(1), the dissent of Professor Sir Nigel Rodley in C v. Australia on this point is to be preferred:

‘Having found a violation of article 9, paragraph 1, however, the Committee unnecessarily also concluded that a violation of article 9, paragraph 4, was involved, using language tending to construe a violation of article 9, paragraph 1, as ipso jure “unlawful” within the meaning of article 9, paragraph 4. In this the Committee followed the trail it blazed in A v Australia (560/1993). In my view this was too broad a trail. Nor was it justified by the text of the Covenant. “Arbitrary” in article 9, paragraph 1, certainly covers unlawfulness. It is evident from the very notion of arbitrariness and the preparatory work. But I fail to see how the opposite is also true. Nor is there anything in the preparatory work to justify it. Yet this is the approach of A v Australia, seemingly reaffirmed by the Committee in the present case. It does not follow from this difficulty with the Committee's approach that I necessarily take the view that article 9, paragraph 4, can never be applied in a case in which a person is detained by a State party as long as legal formality is respected. I could, for example, imagine that torture of a detainee could justify the need for recourse to a remedy that would question the continuing legality of the detention. My present argument is simply that the issue did not need addressing in the present case, especially in the light of the fact that the absence of the possibility of a judicial challenge to the detention forms part of the Committee's reasoning in finding a violation of article 9, paragraph 1.’

Since Australian policy is to detain minors, too, the Bakhtayari case also found a breach of Art. 24.

58. Bassiouni, M. Cherif, ‘A policy-oriented inquiry into the different forms and manifestations of “international terrorism”’, in Bassiouni, M. Cherif, ed., Legal Responses to International Terrorism (The Hague, Kluwer Law International 1988) p. xviGoogle Scholar.

59. UNHCR Guidelines, supra n. 8. See also UNHCR Position Paper, supra n. 12. Much of the text that follows is taken from the author's editorial in 16 IJRL (2004) p. 1CrossRefGoogle Scholar.

60. See Note on the Exclusion Clauses (UNHCR, Geneva 1997).

61. That is, on grounds of national security, where there are reasonable grounds for regarding the refugee as a danger to security of the country in which he is, or where s/he has been convicted of a particularly serious crime (such as those mentioned in Art. lF(a)) and constitutes a danger to the community of that country.

62. UNHCR Guidelines, supra n. 8, paras. 18, 19 and 26.

63. See Amsterdam Seminar, supra n. 39, ‘Conclusions and recommendations’, sec. 2: Burden of proof, para. III.

64. Background Note, supra n. 8, paras. 59–60.

65. Ramirez v. Canada (Minister of Employment and Immigration) [1992] 2 FC 306 (CA). See s. 19(l)(e)(iv), (f)(iii) and (g) of the Canadian Immigration Act.

66. Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, para. 8.

67. The phrase is that of Paul White, a refugee law judge in Australia and a member of the International Association of Refugee Law Judges.

68. While Art. 6 of the ECHR has been held to have no application to refugee status determination proceedings (Maaouia v. France, Judgement of 5 October 2000, 33 EHRR (2001) p. 1037, para. 40Google Scholar), the language of Art. 14 ICCPR, supra n. 49, is broader, referring to ‘his rights and obligations in a suit at law’, and may afford fair trial guarantees in cases dealing with refugee status. See also Art. 13 ICCPR (expulsion of an alien) and Art. 13 ECHR (effective remedy – Conka v. Belgium, Judgement of 5 February 2002, 34 EHRR (2002) p. 1298Google Scholar)

69. Background Note, supra n. 8.

70. In Kaddari v. Minister for Immigration and Multicultural Affairs [2000] FCA 659, para. 13 (Australian Fed. Ct.), the evidence against the accused came from the Australian Security and Intelligence Organization. See also the New Zealand case, Refugee Appeal No. 74540 (Zaoui), 1 August 2003, where the Refugee Status Appeals Authority engaged in a very lengthy examination of the sources of evidence, some of which were extremely dubious and some of which came from the state security services.

71. Bliss, M., ‘“Serious reasons for considering”: minimum standards of procedural fairness in the application of the Article 1F exclusion clauses’, Supp. 1 of 12 IJRL (2000) pp. 92 at 121–123CrossRefGoogle Scholar. See also In re R-S-H- et al., 23 I&N Dec. 629 (BIA 2003).

72. The exclusion from refugee status of child soldiers, for example, raises questions about duress and diminished responsibility, as well as about the age of criminal responsibility.

73. Background Note, supra n. 8, para. 70; one would expect that the applicant would also have had to renounce such methods, ibid., para. 73.

74. See Art. 3 UN Convention Against Torture 1984, or Art. 3 ECHR. However, it still leaves open the fact that in many states, there is no safety net of enforceable international human rights law.

75. The Guidelines suggest that lF(a) and lF(c) will rarely fall within the proportionality test given the nature of the crimes. Cf. Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982, where the Canadian authorities tried to argue that drug trafficking was contrary to the purposes and principles of the UN.

76. UNHCR Guidelines, supra n. 8, II.B.15.

77. Background Note, supra n. 8.

78. See generally High Commissioner Ruud Lubbers statement of 5 November 2004 addressed to EU leaders, ‘EU needs fair and efficient asylum system’, in The Guardian, 3 11 2004Google Scholar.