CYIL vol. 11 (2020)

HARALD CHRISTIAN SCHEU CYIL 11 (2020) However, in the light of the ongoing EU migration and asylum crisis, it is necessary to reflect on some consequences which have not been mentioned in the CJEU judgment. It follows from the absolute nature of the principle of non-refoulement that EU Member States must tolerate in their territories’ refugees who have committed the most abominable crimes or pose a serious risk to national security. Whereas the standard of international human rights law is, in principle, considered higher than the standard of protection under international refugee law, it is worth recalling that in 1997 the Standing Committee of the High Commissioner for Refugees issued a brief comment on the so-called exclusion clauses in refugee law. Under Article 1F of the Geneva Convention the provisions of the Convention shall not apply to a person who has committed a crime against peace, a war crime, or a crime against humanity, as defined by the relevant international instruments, or has committed a serious non-political crime outside his country of refuge prior to his admission to that country as a refugee, or has been guilty of acts contrary to the purpose and principles of the United Nations. After having emphasized the link between Article 1F and Article 33(2) of the Geneva Convention, the Standing Committee of the UNHCR noted that the primary purposes of these provisions are to deprive the perpetrators of heinous acts and serious crimes of refugee protection and to safeguard the receiving country from criminals who present a danger to that country’s security. According to the UNHCR Standing Committee, receiving countries shall be protected from criminals who present a danger to the country’s security. The Standing Committee found that the protection of perpetrators of grave crimes would be in direct conflict with the humanitarian and peaceful nature of the concept of asylum. 23 Given that the UNHCR Standing Committee explicitly referred to the exclusion clause in Article 1F of the Geneva Convention as a tool intended to preserve the integrity of the asylum concept, 24 the question may be asked of whether it would be equally appropriate to maintain the integrity of the concept of fundamental rights in cases of serious crimes committed by those who claim protection. It is true that, in situations covered by Articles 14 and 21 of the Qualification Directive and Articles 1F and 33(2) of the Geneva Convention, there, generally speaking, are no pleasant and entirely convincing solutions. It needs to be admitted that, in many non-refoulement cases, there is, after all, only a choice between two evils. The first evil is the danger to which a refugee is exposed if returned. The return of a refugee to an unsafe country calls into question our basic considerations of humanity. The second evil is the danger to which society, i.e. potential victims, are exposed if the perpetrator of grave crimes remains in the territory. A state which, because of the principle of non-refoulement, is unable to effectively protect its inhabitants, including the most vulnerable among them, from crimes committed by refugees, seems to betray the essence of its legitimacy, which lies in the protection of the population. By emphasizing the absolute nature of the principle of non-refoulement, human rights jurisprudence always resolves this contradiction in favor of the refugee. In a similar context, 25 Manfred Nowak, one of the leading European human rights experts, spoke very aptly 23 UNHCR Standing Committee: Note on the Exclusion Clauses, EC/47/SC/CRP.29, 30 May 1997. 24 Ibidem. 25 In this way, Nowak commented on a case that happened in early 2019 in Vorarlberg, Austria. In January 2019, a Turkish citizen illegally returned to Austria who in 2009, after having committed several crimes in Austria, had been deported to Turkey. In his application for asylum of January 2019, he argued that he had been persecuted in Turkey as a Kurdish fighter. However, after the competent Austrian authority, on formal grounds, refused to

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