CYIL vol. 11 (2020)

CYIL 11 (2020) THE PRINCIPLE OF NON-REFOULEMENT AND THE EU CHARTER… about the price to be paid in order to ban torture. 26 The legality of measures in the field of alien law, this means, among other things, the expulsion of criminals to the country of origin, has to be assessed in the light of the principle of non-refoulement. On one hand, the absolute nature of the principle of non-refoulement is a key value and one of the foundations of our civilization, on the other, victims of crime, sometimes, pay a very high price for this value. Certainly, it is perfectly legitimate to consider, with Manfred Nowak, that the price of the principle of non-refoulement is, in any case, reasonable or necessary. However, we might ask whether a majority in society would reach the same conclusion respectively, whether it would uphold such conclusion in a situation of a long-lasting migration and asylum crisis and a significant increase in the number of crimes committed by refugees. In other words, is the price for the absoluteness of the non-refoulement principle always the same, or is there a certain threshold of pain which shall not be exceeded, not even in liberal democracies? Certain questions concerning the limits of the principle of non-refoulement have been raised by the UN Commission on International Law in 2017 when it dealt with the draft articles on crimes against humanity. 27 TheCommission´s draft was inspired by similar documents concerning, for example, genocide and war crimes. Article 5 of the draft articles introduces the principle of non-refoulement as it stipulates that no State shall expel, return (refouler), surrender, or extradite a person to territory under the jurisdiction of another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity. The Commission´s commentary on Article 5 28 briefly outlines the development of the principle of non-refoulement in various areas of international law, including references to the relevant case law of various human rights bodies. In paragraph 11 of its comment, the Commission briefly recalls that, unlike Article 33(2) of the Geneva Convention, newer human rights treaties do not contain an exception to the non-refoulement principle. Therefore, it was not considered appropriate to include such an exception into Article 5 of the draft articles. Such solution of the non-refoulement issu’e may, at first sight, seem unproblematic. However, it was the United States which raised objections to the wording of Article 5 of the draft articles and which explicitly criticized that the norm would provide protection from refoulement to those who present a threat to security (e.g. human rights abusers and those who have made terrorist threats). Therefore, by referring to national asylum legislation and case law, the US requested to consider the inclusion of an exception clause similar to Article 33(2) of the Geneva Convention into the draft. 29 Last but not least, the scope of the principle of non-refoulement has also been questioned in the context of the so-called Global Compact for Safe, Orderly and Regular Migration, which was adopted by the UN General Assembly in 2018. 30 In its final version, the Global pay social benefits, the asylum seeker went to the head of the social welfare office and stabbed him to death with a kitchen knife. For more details on the facts of the case, see e.g. Die Presse, 7 February 2019. 26 See the interview with Manfred Nowak in the journal „Profil“ of 12 February 2019 (https://www.profil.at/ shortlist/oesterreich/manfred-nowak-vorarlberg-mord-asylrecht-preis-10642361). 27 ILC. Text of the draft articles on crimes against humanity adopted by the Commission on first reading (available at http://legal.un.org/docs/?path=../ilc/reports/2017/english/chp4.pdf&lang=EFSRAC). 28 The commentary is available at http://legal.un.org/docs/?path=../ilc/reports/2017/english/chp4.pdf&lang=EFSRAC. 29 Comments from the United States on the International Law Commission’s Draft Articles on “Crimes Against Humanity” as Adopted by the Commission in 2017 on First Reading (available at http://legal.un.org/ docs/?path=../ilc/sessions/71/pdfs/english/cah_usa.pdf&lang=E). 30 Doc. A/RES/73/195.

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