Seeking Justice, Guaranteeing Protection and Ensuring Due Process: Addressing the Tensions between Exclusion from Refugee Protection and the Principle of Universal Jurisdiction
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| Author | Jeff Handmaker |
| DOI | 10.1177/016934410302100403 |
| Subject Matter | Part A: Article |
SEEKING JUSTICE, GUARANTEEING PROTECTION
AND ENSURING DUE PROCESS:
ADDRESSING THE TENSIONS BETWEEN
EXCLUSION FROM REFUGEE PROTECTION AND
THE PRINCIPLE OF UNIVERSAL JURISDICTION*
JEFF HANDMAKER**
Abstract
Efforts to secure protection for refugees in the Netherlands are being undermined by
over-enthusiastic use of the exclusion principle in refugee status determination
procedures. Inappropriate use of the exclusion principle is tied to accelerated (albeit
ineffective) efforts to secure justice for human rights violators. As this article argues,
the tensions that arise are unacceptable, but can be appropriately addressed through a
(re)commitment to both principles and pragmatism. A principled commitment would
ensure that due process is thoroughly respected in asylum determination procedures.
This must be accompanied by a pragmatic, rights-based application of the aut dedere
aut judicare principle (extradite or prosecute), reinforced by strengthened coordination
between the government agencies responsible for asylum and prosecution.
1. INTRODUCTION
Much has been written about the current challenges facing the international
asylum regime, with some even claiming that there is a ‘crisis’
1
in the regime
Netherlands Quarterly of Human Rights, Vol. 21/4, 677-695, 2003.
@ Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 677
* Originally presented at the Symposium, ‘Universal Jurisdiction: Diversity and Inclusivity’,
organised by Africa Legal Aid (www.afla.unimaas.nl), Maastricht, the Netherlands, 7 december
2001. I am especially grateful to Helen Moffett on matters of syntax, idioms and other such
grammatical nightmares. Thanks also go to Evelyn Ankumah, Executive Director of Africa
Legal Aid, for inviting me to speak at the Symposium, Dr. Edward Kwakwa and Jann Kleffner,
both of whom kindly provided extensive feedback on earlier versions of this article and to
Marion Soffers and Mariette Timmer of Weteringkade Advocaten in The Hague, the
Netherlands, with whom I collaborated on the 2001 written submission (supra note 28).
**
LLB (Newcastle), LLM (SOAS, London), Freelance Consultant, Rea Hamba Advice, the
Netherlands – www.reahamba.nl, and a Ph.D. candidate at Utrecht University, Faculty of Law.
1
Hathaway, J., ‘The Emerging Politics of Non-Entre´e’, Refugees, Issue 91, pp. 40-41 and
Hathaway, J. (ed.), Reconceiving International Refugee Law, Martinus Nijhoff, The Hague, 1997.
This is contested by some, who hold that arguing (in support of or against) the ‘death of
asylum’ could validate the current objections of States, and ultimately become a ‘self-fulfilling
prophecy’. These views were expressed at the Asylum and the Politics of Refuge conference at
Southampton University, 29 June 1998. See also Verdirame, G., ‘Death of Asylum’: Fallacies
and Dangers, 6
th
IRAP Conference, Jerusalem, 13-16 December 1998.
678
due to changed priorities in global politics and an increase in the mobility of
persons seeking asylum. Whether or not a ‘crisis’ exists, there has
undoubtedly been a tendency in recent years by States that have traditionally
offered refugee protection to restrict the numbers of those being granted
asylum.
This restrictive tendency in the asylum regime has been paralleled by the
rapid development of international criminal law. Discussions on criminal
law and refugee protection have largely been carried out in isolation of each
other, and there is still considerable lack of clarity on the connection
between these two legal principles.
2
These trends have had the unfortunate
consequence of splitting the human rights discourse, thus raising
considerable tensions between two separate legal traditions that should be
operating in tandem with each other. It has also created a significant risk
that fundamental human rights may be violated in the attempt to seek
‘justice’.
Tragic events in the United States on 11 september 2001, followed by an
aggressive military response by (predominantly) the USA and its allies, have
accelerated restrictive approaches towards foreigners and asylum applica-
tions in particular. At the same time, there has been great resistance to the
pursuance of justice at a supra-national level. The United States, which
continues to openly resist the establishment of an International Criminal
Court, has proposed that military commissions try persons suspected of
terrorism, in spite of claims by some that this would be illegal, both in terms
of its own constitution and international law.
3
The USA has also extended its
policy of routine detention of asylum seekers and adopted an increasingly
restrictive approach towards the interpretation of asylum claims and
treatment of asylum seekers.
4
Other countries have emulated similarly
restrictive approaches,
5
including members of the European Union.
According to a (leaked) memorandum, the EU is reportedly engaged in
extensive talks with the United States to ‘harmonise’ more stringent checks
on migrants, although the EU alleges that some proposed measures could
Jeff Handmaker
2
One commentator compares the reluctance of the Dutch Government to deliberately address
the issue to the habits of an ostrich ‘sticking its head in the sand’; see Ferdinandusse, W.N.,
‘De struisvogel in ons’, Nederlands Juristenblad, Vol. 40, 8 November 2002, pp. 1985 – 1987.
3
Fitzpatrick, J., ‘The Constitutional and International Invalidity of Military Commissions under
the november 13, 2001, ‘‘Military Order’’’, unpublished, posted on IMMPROF list-server
14 November 2001.
4
In 2001, the United States created the ‘Department of Homeland Security’, which brought
together a range of government agencies, under the auspices of the Immigration and
Naturalisation Service (INS). Measures that have been introduced include compulsory
detention, irrespective of their means of entry, of asylum seekers coming from a
(confidential) list of ‘designated countries’. The DHS/INS is also seeking to overturn a
(relatively liberal) provision concerning gender-related persecution. See ‘Assessing the New
Normal: Liberty and Security for the Post-September 11 United States’, Lawyers Committee
for Human Rights, New York, 2003.
5
Human Rights Watch World Report 2002 (events of 2001), Human Rights Watch, New York,
www.hrw.org.
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