Hitmen & Heroes: Why International Extradition Law Should Frame Considerations of Terrorism in International Refugee Law

Erin Hoya
Vol. 39 Associate Editor

Emotions can provide valuable data by which to assess options. On the other hand, they can “can interfere with [the] ability to make rational judgments.”[1] While our feelings—particularly negative ones such as fear, anger, or disgust—serve us well as red flags, prompting us to examine issues with potential negative consequences more closely, their influence should generally be limited in decision-making. This is especially true in the case of judges, tribunals, and other authorities who bear the heavy responsibility of determining refugee claims that involve allegations of terrorism.

The case of Ahani v. Canada[2] illustrates how current decision-making approaches to allegations of terrorism in refugee law in several jurisdictions raise significant concerns for refugees and for the international refugee resettlement system overall. These concerns particularly emerge when considering cases under Article 1F(b)[3] of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (hereinafter “the Refugee Convention”).[4] Ahani was an Iranian national whom Canadian officials alleged had served in the Iranian Ministry of Intelligence Security (MOIS), essentially, Iran’s secret service. Canadian intelligence services asserted MOIS both sponsored and undertook “a wide range of terrorist activities, including the assassination of political dissidents world-wide.”[5] Though Ahani was recognized as a Convention refugee, the Federal Court of Appeals upheld the ability of the Minister of Citizenship and Immigration to refoule him to Iran on the basis that he posed “a danger to the security of Canada.”[6] In reaching its decision, the court glossed over concerns that the definition of terrorism employed in the relevant legislation was unconstitutionally vague by referencing its decision in Suresh v. Canada,[7] defining a terrorist organization as a group which directs violence at an “innocent civilian population”[8] in pursuit of political reform, and asserting that assassinations used to silence political dissidents pursuing greater freedom of expression fit easily within the notions of terrorism established in Suresh. Notably, the opinion judge quipped, “I may not be able to give the term ‘terrorism’ a comprehensive definition. But that does not mean that I do not recognize certain obvious acts of terrorism when I see them.”[9]

An analysis of the Canadian “I’ll know it when I see it” approach to defining terrorism, seen in Ahani, reveals that using broad concepts of terrorism to define political crimes under Article 1F(b) is problematic in multiple ways: 1) it encourages a double standard in favor of refuge states and states that are more culturally and politically similar to themselves, 2) it does not sufficiently take into account the risks of serious harm that virtually every applicant who runs afoul of domestic terrorism bars faces, and 3) it provides little to no guidance to those wishing to ground their decisions in appropriate legal standards, producing inconsistent decisions that are at risk of being informed more by a particular decision-maker’s political leanings or knee-jerk reactions to than principles of international refugee law. (Similarly subjective tests are employed to define non-political, particularly terrorist, crimes across jurisdictions, and thus, create the same problems.)[10]

Returning to the facts of Ahani demonstrates how such approaches can create an unethical double-standard in evaluating refugee claims. A main factor in the court’s decision to allow the refoulement of Ahani was because of his alleged participation in assassinations of Iranian citizens abroad who were labeled as political dissidents, implying that any violence directed against such individuals, though carried out by a government agent acting under the orders of said government, should automatically prohibit refugee status.

It is hard not to see an uncomfortable similarity to the circumstances of the death of Anwar al-Awlaki—the US citizen who became an al-Qaeda propagandist—via drone strike in 2011:[11] a citizen abroad who exercised his freedom of expression in a manner perceived as so threatening to his nation that government officials ordered an agent to kill him while abroad.[12] Were the agent who operated the drone—or any of the number of officers in the chain of command who passed down the order to kill al-Awlaki—to make a refugee claim, would the Ahani court bar the agent from receiving asylum, even if he or she met all the criteria of the refugee definition? Given the similarity of feelings on al-Qaeda across the United States and Canada, it doesn’t seem likely, thus, creating an unethical double-standard in the treatment of refugees based on the attitudes of decision-makers towards a claimant’s government and the victim of the assassination.[13]

The insufficiency of a subjective approach to terrorism under Article 1F(b) is made even clearer when considering what could happen in the case of an arguably even more sympathetic claimant, such as former South African President and Nobel Peace Prize winner, Nelson Mandela. Mandela remained on a U.S. terrorist watch list and was inadmissible to the United States as recently as June 2008 due to his leadership in the African National Congress (ANC). Under his leadership, the ANC chose to abandon nonviolent tactics in its anti-apartheid efforts, and Mandela went on to form—and lead—its first ever military wing.[14] Subsequently, the ANC began using violent tactics to sabotage public facilities, such as planting homemade bombs at electric power stations and government offices.[15]

Even decades after the end of apartheid and Mandela’s recognition by many around the world as a hero of South Africa, some considered him a monster with “the blood of thousands of innocent lifes [sic] on his hands.”[16] Under the subjective Ahani approach, it is impossible to determine whether Mandela’s actions would serve to exclude him under Article 1F(b). Such a decision would depend entirely on whether the decision-maker similarly saw “the blood of thousands” upon Mandela’s hands or whether they had a stronger stomach for the strategic use of violence in situations like apartheid South Africa, justifying the deep frustration many immigration officials face when confronted with similar situations where one nation’s “terrorist” is another’s “freedom-fighter.”

The Canadian court’s dismissive treatment of Ahani is also problematic because it failed to sufficiently take into account the risk of serious harm he faced if refouled to Iran: “The Minister concluded that there was only a ‘minimal risk’ of harm if the appellant were returned to that country and understandably so.”[17] No mention is made whatsoever of any specific reasons why the court felt this assessment was understandable or how the circumstances which originally led the Canadian government to recognize Ahani’s refugee status might have changed so that he no longer faced the risk of harm required for recognition as a Convention refugee. Emphasis on this point is not meant to imply that a balancing test like that proposed by the UNHCR[18] should be adopted. The point of Article 1F(b), along with 1F(a) and 1F(c), is recognizing that someone may meet all the requirements of the refugee definition and yet be undeserving of the title of “refugee” and all the rights and protections that come with it.[19] If claimants qualify for another status through which a refuge state will allow them to remain (for example, the US “withholding of removal” status), great. If they can find another country besides the one they fear to take them in,[20] great. If claimants can do neither of those things, that is not the concern of the international refugee system.

That being said, the harm that an applicant may face if excluded is still relevant because it should alert asylum states to the serious costs of turning someone away, thereby discouraging unprincipled decisions. When someone’s life is at stake—less than that—when there is reason to consider that someone may lose their life, their liberty, or be subject to cruel, inhuman, or degrading treatment or punishment (as is almost always the case for applicants whose claims involve terrorism issues), to approach the subject in a flippant “I know it when I see it” attitude is to play fast and loose with the cold reality of decision-makers in the refugee context: they frequently play the role not only of judge and jury, but in some cases, possibly executioner as well.

Recognizing this point is essential to the discussion of political crimes under Article 1F(b) because it demonstrates the grave consequences for the entire refugee system of not providing immigration authorities with adequate guidance on how to ground their decisions in acceptable legal standards, legal standards like those in T v. Secretary of State for the Home Department.[21] The test for defining non-political crimes in situations involving alleged terrorism adopted in T, and the backdrop of international extradition law, can still fulfill the asylum-state-focused purposes of Article 1F(b) while simultaneously protecting refugees from the problems of the Ahani approach.

In T, the UK House of Lords drew from British,[22] U.S.,[23] and Canadian[24] case law, as well as international standards found in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status,[25] the European Convention on the Suppression of Terrorism,[26] and the 1937 League of Nations Convention on the Prevention and Punishment of Terrorism.[27] Based on these sources, the House of Lords determined that terrorist activities are only barred from the political crime exception in Article 1F(b) when two conditions are met: 1) the act is not committed for the purpose of overthrowing, subverting, or changing the government of a state or to induce a policy change on the part of said state, and 2) the crime committed and its alleged political purpose is not sufficiently linked after weighing factors like the means used to achieve the political goal, the identity of the target, and whether the crime may have resulted in indiscriminate injuries or death.[28]

Applying this extradition-based approach to the facts of Ahani, it is clear that Article 1F(b) would exclude a government agent tasked with assassinating political dissidents abroad because such actions cannot be said to have the purpose of overthrowing, subverting, or changing the government or policy of a state. Quite the opposite, the role of someone in Ahani’s position is to preserve the current government and policies of a state. Given this, there is no political purpose for the agent’s actions under T;[29] even if there had been, Article 1F(b) might still exclude claimants like Ahani depending on the means by which they tried to eliminate a dissident (e.g., the choice to blow up an entire café to get at a target versus smothering a single person in their sleep).

However, unlike the subjective approach in the original case, this extradition approach would ensure that the drone operator who took out al-Awlaki would also be excluded for the same reasons. The fact that many decision-makers would likely feel less sympathy for a victim who openly advocated for an internationally recognized terrorist organization does not change the fact that the operator would have acted to preserve the U.S.’s position in the status quo, just like Ahani, nor is a drone attack necessarily more discriminate than any means Ahani may have employed to eliminate a dissident. In addition, the extradition-based approach would alleviate the “terrorist or freedom-fighter” debate highlighted by the example of Nelson Mandela. The ANC’s use of bombs to sabotage strategic government properties to bring about the end of apartheid and the equal and democratic participation of Afrikaners in South African government meets both the political purpose and sufficient linkage requirements of the test.[30]

These results are consistent with the way international extradition law has evolved in the years since T and the events of September 11th. Vesna Stefanovska, in her article on political and terrorist offenses in international extradition law, notes that in conventions in which terrorist offenses are referenced, the convention language demands that member states criminalize and extradite individuals who commit such crimes.[31] Further, all of these conventions reflect similar approaches to defining terrorist offenses as the one chosen by the House of Lords in T: “the political motive of an offence is irrelevant where it is likely to involve killing or injuring members of the public…all the…anti-terrorist conventions refer to acts which, either directly or indirectly, are intended to cause or likely to inflict indiscriminate death or injury to members of the public, and which are not committed in the context of disturbances [such as political uprisings].”[32]

In conclusion, adoption of an approach to terrorism and political crimes under Article 1F(b) that is founded in international extradition law avoids the pitfalls of subjective tests, like the one employed by the Federal Court of Appeals in the Ahani case, and promotes principled and consistent results in cases that involve possible acts of terrorism. This consistency would help protect asylum-seekers by promoting a more uniform application of the Refugee Convention across states, one of the original purposes of drafting a single refugee treaty in the first place. Therefore, while it is not wrong for immigration officials to take stock of any gut reactions they may experience when they come across potential terrorists seeking asylum (as is currently done under the subjective tests), it is fundamentally contrary to the purposes of the Refugee Convention to allow emotional or cultural distaste for such applicants or the methods allegedly used by them to form the foundation of a decision to exclude them under Article 1F(b).

[1] Shengxiang She, et al., Fear, Anger, and Risk Preference Reversals: An Experimental Study on a Chinese Sample, 8 Frontiers in Psychol. 1, 2 (2017).

[2] Ahani v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14857 (FCA), http://canlii.ca/t/4lfb.

[3] “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that… he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.”

[4] It is important to note that while the language in this case tracks more closely with Article 33(2) of the Refugee Convention (relieving states of their non-refoulement duties when “there are reasonable grounds for regarding [a refugee] as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”), the broad definition of terrorism employed by the Ahani court and the issues it raises are useful for analyzing similar concerns that may appear under Article 1F(b).

[5] Ahani, 3.

[6] Id., 2.

[7] Suresh v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 20738 (FCA), http://canlii.ca/t/gp8sj.

[8] Ahani, 5.

[9] Id. Geoff Gilbert had strong words for the casual use of the term “terrorism” in the refuge context: “Labeling something as terrorism is a matter of political choice rather than legal analysis, distinguishing it in some indecipherable way from the more ‘acceptable’ conduct of the so-called freedom fighter. It is a buzz word, a blanket term for violent crimes and, as such, too imprecise to assist critical analysis.” Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses, in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection 425, 439 (Erika Feller & Volker Türk eds., 2003).

[10] See McMullen v. Immigration and Naturalization Service, (1986) 788 F.2d 591 (USCA, 9th Cir., Apr. 25, 1996) in which the “atrocity” of a given action determined whether or not it qualified as a terrorist event outside the scope of political crimes in Article 1F(b); the Council Directive 2011/95/EU of 13 December 2011 on standards for the qualifications of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), [2011] OJ L 337/9 (Dec. 20, 2011) similarly states that “particularly cruel actions” are similarly outside of the political crime exception of Article 1F(b). Neither source provides any significant guidance on how decision-makers are to figure out when an action has crossed has crossed from the realm of permissibly political to inappropriately “atrocious” or “cruel.”

[11] Spencer Ackerman, US cited controversial law in decision to kill American citizen by drone, The Guardian (June 23, 2014), https://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-citizen-awlaki.

[12] Without knowing what exactly prompted the Iranian government to consider the words or actions of the citizens concerned so threatening, the comparison does have its limitations. Assuming, as the Canadian court did, that the Iranian dissidents were merely advocating for their fundamental human right to freely express themselves, there is, of course, a significant difference between someone who is using their freedom of expression to support an internationally-designated terrorist organization and someone who is fighting for that freedom in the first place. The comparison does not need to be exact, however, to make the point that the subjective Ahani approach to defining a non-political crime could lead to widely disparate treatment of refugee claims depending on how sympathetic a decision-maker is to the government ordering the assassination versus the victim.

[13] At best, the agent’s ability to receive asylum would be uncertain, depending almost entirely on which decision-maker they happen to come before, which is contrary to the Refugee Convention’s goal to reduce uncertainty for asylum-seekers whenever possible.

[14] Won Kidane, The Terrorism Bar to Asylum in Australia, Canada, the United Kingdom, and the United States: Transporting Best Practices, 33 Fordham Int’l L. J. 300, 304-307 (2009).

[15] Id.

[16] Comment of Tim Jeanes to Mimi Hall, Mandela Is On U.S. Terrorist Watch List, USA TODAY, May 1, 2008, at A2.

[17] Ahani, 5.

[18] Jim Hathaway & Michelle Foster, Persons Not Deserving Protection, in The Law of Refugee Status 524, 562-563 (2nd ed., 2014).

[19] Id., 524-528. The purpose, of course, of this arguably harsh approach is to protect the integrity of the international refugee system and so prevent states being deterred from continuing to take part in the Refugee Convention by the admission of undesirable individuals as refugees. It is essentially the sacrifice of a few for the sake of the many.

[20] As discussed in T v. SSHD, infra n. 20.

[21] T v. Secretary of State for the Home Department [1996] AC 742, [1996] 2 WLR 766, [1996] UKHL 8, [1996] Imm AR 443, [1996] AC 742, [1996] 2 All ER 865, http://www.bailii.org/uk/cases/UKHL/1996/8.html.

[22] Tzu-Tsai Cheng v. Governor of Pentonville Prison [1973] UKHL 8 (16 April 1973); Schtraks v. Government of Israel & Ors [1962] UKHL 4 (6 September 1962); In re Meunier [1894] 2 Q.B. 415, and In re Castioni [1891] 1 Q.B. 149.

[23] Matter of Extradition of Atta, 706 F. Supp. 1032 (1989); McMullen v. Immigration and Naturalization Service, supra n.9; Quinn v. Robinson, 783 F.2d 776 (1986); and Eain v. Wilkes, 641 F.2d 504 (1981).

[24] Gil v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1559. When discussing Gil, the House of Lords also made note of how it referenced helpful cases from the Supreme Court of the Netherlands, Folkerts v. Public Prosecutor [1978] 74 Int’l L. R. 498, and the High Court of Ireland, Ellis v. O’Dea [1991] I.R.L.M. 346.

[25] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/IP/4/Eng/REV.1, 1992.

[26] European Convention for the Suppression of Terrorism, Jan. 27, 1977, E.T.S. no. 90.

[27] Convention for the Prevention and Punishment of Terrorism, Nov. 11, 1937 (date created; never entered into force), League of Nations.

[28] T v. SSHD, 31: “A crime is a political crime for the purposes of Article 1F(b) of the Geneva Convention if, and only if; (1) it is committed, for…a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public.”

[29] One could argue that violence undertaken for the preservation of a current political order is just as much a political act as violence taken to alter one, but this argument is not likely to find many supporters, due to the prevalence of political regimes whose willingness to engage in consistent violations of fundamental human rights, which could cause refuge states to run afoul of the principle in international refugee law to not extend refugee protection to those who are themselves responsible for creating refugees.

[30] Mandela was also explicitly conscious of a need to keep the ANC’s use of violence legitimate in the public’s eyes by specifically choosing their actions and targets so as to inflict the least amount of harm on individuals, i.e. refusing to employ the indiscriminate violent means that the House of Lords was concerned about in T. Kidane, 306.

[31] Vesna Stefanovska, The Concept of Political and Terrorist Offences in Extradition Matters: A Legal Perspective, 11 Eur. Sci. J. 69, 74 (2015).

[32] Id.

Vol. 39 Online Editor: Julie Gulledge

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