Last month, Linacre hosted the annual competition for the Domus Research Prize. Students were invited to present part of their research to a non-specialist audience at the Gaudy and attendees voted for the most engaging and effective submissions.

Winner of the Busuttil Prize, Behram Khan (2021), shares with us an article exploring his research topic ‘Should terrorists be excluded from refugee status?’

As a legal scholar, I am primarily interested in constitutional and public international law. This question covers both these fields and so I was driven to carry out research on it during my time at Oxford. The question also allowed me to engage with law and politics at the same time. In fact, to answer it comprehensively, I had little choice but to employ both disciplines and their respective methodologies.

The issue is pressing, especially because it opens many tributaries that are cardinal to the precedence of the rule of law. The first question one would ask is: Who is a refugee? According to Oxford Dictionary, a refugee is “a person who has been forced to leave their country or home, because there is a war or for political, religious or social reasons”. This gives a layperson sufficient idea of who a refugee is. The legal definition, however, is more refined. The 1951 Convention Relating to the Status of Refugees states that a refugee is someone who “owing to a well-founded fear of persecution 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”. There are 149 State parties to the Refugee Convention which makes it an internationally recognised one.

The next legal question is: How can an individual be excluded from Refugee Status? As most laws do, the Refugee Convention provides for exclusion clauses as well. Article 1F(c) of the Convention excludes an individual from acquiring refugee status if “he [or she] has been guilty of acts contrary to the purposes and principles of the United Nations [UN]”. Terrorism – without an international definition – is recognized as an act that is contrary to the purposes and principles of the UN. For example, UNSC Resolution 1373, which was passed just after the 9/11 attacks called upon states to make sure that “refugee status is not abused by [terrorism’s] perpetrators, organizers or facilitators” as it was “contrary to the purposes and principles of the UN”.

At this point, the most plausible question for me was: What is terrorism? Again, Oxford Dictionary defines the term as “the use of violent action in order to achieve political aims or to force a government to act”. However, when you turn to the law you discover that there is no legal definition of terrorism that is internationally accepted! There are domestic definitions that are so broadly drafted that very small acts – or even justified acts of opposition – can fall within their realm. For example, the Canadian Anti-Terrorism Act (2001) defines terrorism through a definition of remarkable breadth: “It has been criticized for catching both non-violent dissent and ordinary violent behavior within its net” (Kaushal, 2011, p.70).

This situation leads one’s mind toward the cliché from time immemorial that one man’s terrorist is another man’s freedom fighter. Reagan welcomed the Afghan Mujahideen because they were fighting the ‘just war’ against the ‘red infidels’. Post 9/11, the same Mujahideen were unwelcome. Afghan refugees were not accepted in the west or in US-appeasing countries such as Pakistan in the same way as before. But today Ukrainians are welcomed by the US and her allies with open arms.

Refugeehood is open to such blatant political exploitation by governments around the world largely because of the absence of an international legal definition of terrorism. Such a vacuum leaves this pressing issue at the mercy of political whim. For example, in the Suresh case, the Canadian Supreme Court held that a refugee could be deported even if there was a proven risk of torture, so long as the Minister showed that he was linked to terrorism. Protection from Torture is an absolute right under International Human Rights Law and the Convention against Torture. So hypothetically speaking, even if Bin Laden were to be found strolling the streets of Manhattan, international law is clear that he could not have been deported to Saudi Arabia if it was established that he would be at risk of being tortured in that country. Why then did the Court in Suresh depart from such a peremptory legal principle? The applicant pled his case in May 2001 and the decision was made in January 2002. In the interim, the attacks of 9/11 occurred. Politics!

One of the problems with having politics in the driving seat when such issues of high legal importance are at stake is that it disallows legitimate acts of resistance in a very mercurial way. For example, Mandela and Arafat who were once labeled as terrorists turned into Nobel Peace laureates. I argued in my paper that one can be politically criticized or morally condemned but not legally punished without a legal definition of terrorism in place. As a result of the absence of such a definition, “refugee claimants now exist in a ‘culture of exclusion’, where exclusion is too frequently equated with terrorism” (Gurung, 2002, para.14).

In the penultimate chapter of my research, I have proposed some reforms. These include the following:

1. A Universal Definition of Terrorism – the most suitable definition, in my opinion, is the one offered by the Special Tribunal for Lebanon (STL) in its 2011 Decision.

2. The Revamping of the United Nations Security Council by drawing a clear line between law and politics.

3. Building International Courts

  • A Refugee Court for Refugee Convention interpretations.
  • A Terrorism Court to prosecute those accused of terrorism.
  • Both should complement one another, and their judgments should be binding.
  • Both should be equally international to equate denominators and therefore deliver justice.

I hope that my work has successfully encompassed and addressed the major difficulties that exist within the vast question I took on. There was law, politics, and philosophy, and so I enjoyed working on it. To quote my final sentence from the paper itself – “the absence of a universally agreed definition of terrorism means that terrorists should not be excluded from refugee status under Article 1F(c) of the CSR”.

Happy to answer any follow-up questions. Thank-you!