Dr. Tally Kritzman-Amir
CLB
Article 1. - Definition of the term "refugee"
A. … any person who: …
(2) As a result of events occurring before 1
January 1951 and owing to well-founded
fear of being persecuted for reasons of race,
religion, nationality, membership of a
particular social group or political opinion,
is outside the country of his nationality and
is unable or, owing to such fear, is unwilling
to avail himself of the protection of that
country; …
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Comparative law: court decisions, laws and
regulations in other countries, etc.
UNHCR
handbook,
guidelines,
EXCOM
recommendations/decisions, notes, etc.
Works of Scholars – books, articles etc.
Hathaway, Goodwin-Gill, Anker, Kneebone, Legumsky, Mussalo,
Aleinikoff, others.
Purposive interpretation in light of human
rights and responsibility sharing considerations
vs. historical and sovereignty-centered
interpretation.
 Eurocentric
 Refugees
Convention
– a temporary phenomenon?
 The “typical
refugee” – a WWII survivor.
 Reflects
Ideological Choices & International
Compromise.
 At
the same time other int’l human rights
instruments were formed (but before the
feminist movement gained power)


Prospective, past prosecution is not
required and is insufficient.
What is well founded?
Cardoza Fonseca (US, 1987) – reasonable possibility.
UK - reasonable degree of likelihood/ real and
substantial danger of persecution
Canada - reasonable chance

Burden of proof
 Fear-
Subjective? Objective?
 What
constitutes persecution?
Violations of non-derogable rights
(life, liberty, cruel and inhumane punishment, slavery, freedom of
conscience and religion)
Violations of other political rights - usually
constitutes persecution unless necessary due to
state of emergency
(freedom of movement, freedom from arbitrary detention, nondiscrimination, fair trial, family, privacy, freedom of opinion and
expression, etc.)
Severe Violations of Economic and Social Rights
 Several
acts of persecution?
 Discrimination
 Persecution
 Who
vs. Persecution
vs. Prosecution
is the persecutor?
 Intent?
 Who
is not specifically included?
Persons persecuted on account of gender, sexual orientation, disabilities,
age, socio-economic reasons etc.
 What
is race? What is nationality? /what
is religion? – a broad definition
 Political
opinion – including imputed
political opinion; including acts which at
first sight may not seem political.
A
group united by something else other
than its persecution
 Membership
voluntary
in PSG is not necessarily
A
common activity or organization is not
necessary
 Immutable
characteristics
approach/
distinguishing characteristics approach.
 Group’s
size.
well-founded fear of being persecuted
for reasons of race, religion, nationality,
membership of a particular social group
or political opinion
 IDPs
 The
Dilemma: Protection vs. Intervention,
Sovereignty
as
an
important
consideration.
is unable or, owing to such fear, is
unwilling
to
avail
himself
protection of that country
of
the
F. The provisions of this Convention shall not apply
to any person with respect to whom there are
serious reasons for considering that:
( a ) He has committed a crime against peace, a
war crime, or a crime against humanity, as
defined in the international instruments drawn
up to make provision in respect of such crimes;
( b ) He has committed a serious non-political
crime outside the country of refuge prior to his
admission to that country as a refugee;
( c ) He has been guilty of acts contrary to the
purposes and principles of the United Nations.