Caught in Limbo: How Alleged Perpetrators of International Crimes who Applied for Asylum in the Netherlands Are Affected by a Fundamental System Error in International Law

J. Reijven, J. van Wijk

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Abstract

The Netherlands are internationally at the forefront of applying article 1F of the Refugee Convention. It has resulted in the existence of a group of hundreds of mainly Afghan and Iraqi asylum claimants who are excluded from refugee protection due to their alleged involvement in international crimes, such as war crimes, crimes against humanity, and genocide. Although determining whether the exclusion clause applies is challenging in itself, this article demonstrates that developing a consistent post-exclusion policy appears to be even more complicated. A lack of harmonization in international law results in those excluded persons who cannot be prosecuted, or deported to their country of origin due to human rights concerns, being left in limbo. On the basis of interviews with twenty-four excluded asylum claimants in the Netherlands, this article presents a unique insight into the effects of this fundamental system error. It describes the economic, social, and health deprivation they face and discusses how the excluded persons themselves suggest solving the situation. The article also analyzes the (ad hoc) measures the Dutch government has taken in an attempt to resolve this issue and the informal strategies deployed by the excluded persons themselves. The authors conclude that only a profound adjustment of international law could bring a universal, coherent, and durable solution to the identified system error. Alternatively, it could be considered to reconcile various ad hoc solutions of existing post-exclusion measures. © The Author (2014). Published by Oxford University Press. All rights reserved.
Original languageEnglish
Pages (from-to)248-271
JournalInternational Journal of Refugee law
Issue number26 (2)
Early online date20 May 2014
DOIs
Publication statusPublished - 2014

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international law
crime
Netherlands
exclusion
offense
refugee
human being
genocide
war crime
harmonization
country of origin
human rights
deprivation
lack
interview
health
economics
Group

Cite this

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title = "Caught in Limbo: How Alleged Perpetrators of International Crimes who Applied for Asylum in the Netherlands Are Affected by a Fundamental System Error in International Law",
abstract = "The Netherlands are internationally at the forefront of applying article 1F of the Refugee Convention. It has resulted in the existence of a group of hundreds of mainly Afghan and Iraqi asylum claimants who are excluded from refugee protection due to their alleged involvement in international crimes, such as war crimes, crimes against humanity, and genocide. Although determining whether the exclusion clause applies is challenging in itself, this article demonstrates that developing a consistent post-exclusion policy appears to be even more complicated. A lack of harmonization in international law results in those excluded persons who cannot be prosecuted, or deported to their country of origin due to human rights concerns, being left in limbo. On the basis of interviews with twenty-four excluded asylum claimants in the Netherlands, this article presents a unique insight into the effects of this fundamental system error. It describes the economic, social, and health deprivation they face and discusses how the excluded persons themselves suggest solving the situation. The article also analyzes the (ad hoc) measures the Dutch government has taken in an attempt to resolve this issue and the informal strategies deployed by the excluded persons themselves. The authors conclude that only a profound adjustment of international law could bring a universal, coherent, and durable solution to the identified system error. Alternatively, it could be considered to reconcile various ad hoc solutions of existing post-exclusion measures. {\circledC} The Author (2014). Published by Oxford University Press. All rights reserved.",
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N2 - The Netherlands are internationally at the forefront of applying article 1F of the Refugee Convention. It has resulted in the existence of a group of hundreds of mainly Afghan and Iraqi asylum claimants who are excluded from refugee protection due to their alleged involvement in international crimes, such as war crimes, crimes against humanity, and genocide. Although determining whether the exclusion clause applies is challenging in itself, this article demonstrates that developing a consistent post-exclusion policy appears to be even more complicated. A lack of harmonization in international law results in those excluded persons who cannot be prosecuted, or deported to their country of origin due to human rights concerns, being left in limbo. On the basis of interviews with twenty-four excluded asylum claimants in the Netherlands, this article presents a unique insight into the effects of this fundamental system error. It describes the economic, social, and health deprivation they face and discusses how the excluded persons themselves suggest solving the situation. The article also analyzes the (ad hoc) measures the Dutch government has taken in an attempt to resolve this issue and the informal strategies deployed by the excluded persons themselves. The authors conclude that only a profound adjustment of international law could bring a universal, coherent, and durable solution to the identified system error. Alternatively, it could be considered to reconcile various ad hoc solutions of existing post-exclusion measures. © The Author (2014). Published by Oxford University Press. All rights reserved.

AB - The Netherlands are internationally at the forefront of applying article 1F of the Refugee Convention. It has resulted in the existence of a group of hundreds of mainly Afghan and Iraqi asylum claimants who are excluded from refugee protection due to their alleged involvement in international crimes, such as war crimes, crimes against humanity, and genocide. Although determining whether the exclusion clause applies is challenging in itself, this article demonstrates that developing a consistent post-exclusion policy appears to be even more complicated. A lack of harmonization in international law results in those excluded persons who cannot be prosecuted, or deported to their country of origin due to human rights concerns, being left in limbo. On the basis of interviews with twenty-four excluded asylum claimants in the Netherlands, this article presents a unique insight into the effects of this fundamental system error. It describes the economic, social, and health deprivation they face and discusses how the excluded persons themselves suggest solving the situation. The article also analyzes the (ad hoc) measures the Dutch government has taken in an attempt to resolve this issue and the informal strategies deployed by the excluded persons themselves. The authors conclude that only a profound adjustment of international law could bring a universal, coherent, and durable solution to the identified system error. Alternatively, it could be considered to reconcile various ad hoc solutions of existing post-exclusion measures. © The Author (2014). Published by Oxford University Press. All rights reserved.

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