Transnational criminal offending and asylum seeking: are state obligations clear-cut?

La_citadelle_de_Saint_Martin_de_Ré_11
Prison meets the Ocean | La citadelle de Saint Martin de Ré, France | Image by Celeda

By Dr Jade Lindley

Extradition is one of the most useful legal tools enabling a prosecuting State to perform its role in seeking justice. Through the extradition process, offenders acquitted at trial or prosecuted and incarcerated may be released into society within that country. In some cases, the extraditing State may facilitate the return of that person to their home country. However, in other situations, released persons may be eligible for asylum if they meet the criteria set out in the 1951 Geneva Convention Relating to the Status of Refugees (Geneva Convention). By definition, refugees are people unprotected by their government, and are more than likely facing persecution. Therefore, the international community has an obligation to protect. The Geneva Convention requires asylum seekers to show a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group, and are unable or unwilling to seek protection from the authorities in their own country.[i]

While likelihood for asylum approval is dependent on myriad factors, some nations may opt not to extradite alleged offenders, particularly in a time of increasingly tightening immigration policies, as was seen to occur with catch and release of Somali pirates. States that enjoy stable governance and uphold human rights should grant those conditions to anyone eligible; however in doing so may evoke public outcry questioning the system.

But: Article (F) of the Geneva Convention outlines factors that would deem an applicant ineligible for asylum, including crimes against peace, a war crime, a crime against humanity, or has been guilty of acts contrary to the purposes and principles of the UN.[ii] On that basis, anyone found guilty of an offence would likely be ineligible. Those acquitted at trial may still be eligible to apply, as no guidelines exist about people acquitted of their alleged crimes in the Geneva Convention. Achieving successful outcomes at trial may therefore be essential to avoid the grey area.

Upon receipt of an application for asylum, the Committee against Torture assesses the perceived level of danger against the requirements of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention). States that have signed the Torture Convention are obligated to grant asylum to anyone who meets the criteria, regardless of the crimes they committed, assuming there is high likelihood of torture resulting. This is based on the principle of nonrefoulement preventing a State from returning a refugee against their will.[iii] Article 3, part 1 of the UN Convention against Torture states that:

No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

The only exception to this is if the applicant has been previously convicted of a particularly serious crime and may endanger the security of that country.[iv] Further, those granted asylum may also be eligible to have their family join them.[v] Prosecuted Somali pirates have successfully sought asylum in countries genuine refugees would be desperate to enter.[vi] Disconnects between penalising for crimes and preventing further harm may require further consideration.

Research shows that many offenders of crimes against humanity derive from countries with limited opportunity. One could argue that lack of alternatives increased the motivation to take opportunities for criminal offending. In that situation, it may be conceivable that those countries have a history of human rights violations and therefore it would be challenging to return a convicted offender. As such, offenders can take advantage of these human rights violations and seek asylum in states with stable governance. Should the international community stand firm and deny eligibility for asylum or complementary forms of protection against refoulement and if so, would states be contravening their obligations?

Dr Jade Lindley is a Lecturer at The University of Western Australia Law School and Oceans Institute. Her book Somali piracy: A Criminological Perspective was released by Routledge in 2015.


[i] United Nations, “Convention Relating to the Status of Refugees,” New York: United Nations. http://www.unhcr.org/3b66c2aa10.html.

[ii] Ibid.

[iii] United Nations, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/39/46,” New York: United Nations. http://www.un.org/documents/ga/res/39/a39r046.htm.

[iv] United Nations, “Convention Relating to the Status of Refugees,” New York: United Nations. http://www.unhcr.org/3b66c2aa10.html: Article 33(2).

[v] Ibid.

[vi] Bruno Waterfield, “Somali Pirates Embrace Capture as Route to Europe” The Telegraph, 19 May 2009. http://www.telegraph.co.uk/news/worldnews/piracy/5350183/Somali-pirates-embrace-capture-as-route-to-Europe.htm.

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