Newspaper article The Canadian Press

The Trouble with Impunity: War Crimes and a Humanitarian Agency

Newspaper article The Canadian Press

The Trouble with Impunity: War Crimes and a Humanitarian Agency

Article excerpt

The trouble with impunity: War crimes and a humanitarian agency

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This article was originally published on The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts. Disclosure information is available on the original site.

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Author: Didem Dogar, Doctoral candidate at McGill University Faculty of Law, McGill University

Imagine that your country is at war; you fight and believe that what you are doing is the right thing to do. But then one day you need to flee, because either opposition or government forces have decided that you are no longer needed and should be silenced or eliminated.

You flee and seek asylum in host states. Then their authorities tell you that "you were in the army, might have committed war crimes, so we need to investigate what you did in the army."

At the end of this process, they have serious suspicions that you had committed war crimes back in your country. What happens to you next?

This scenario frequently occurs when states conduct what's known as refugee status determination procedures to decide who is a refugee. Here is the challenge: There are well-founded suspicions that you committed a crime as you fought for your country, but can you be tried for that crime?

This is often not a viable option considering that you're a foreigner and suspected of a crime committed far away. Gathering evidence would be a daunting task for host states. If a criminal trial is not an option, this puts the problem of what's known as impunity front and centre.

What is impunity?

According to the United Nations, impunity occurs when states fail to meet their obligations to investigate human rights violations and do not take the appropriate steps to ensure suspects are prosecuted, tried and punished.

In short, impunity arises when states neglect to bring suspects of human rights violations to justice.

We often view states as being primarily responsible for preventing impunity. But could a humanitarian agency, like the United Nations High Commissioner for Refugees (UNHCR), be causing impunity because it's doing its job? Could it cause states to fail to investigate human rights violations? Let's examine:

The 1951 Refugee Convention is an international legal document that defines who is a refugee. Normally, states have the main responsibility to determine the status of asylum seekers, but the UNHCR intervenes only if "states are unable or unwilling" to do so.

In 2013, the UNHCR was responsible for assessing and dismissing refugee claims in more than 50 countries, including in Thailand and Malaysia, which receive the most asylum-seekers in Southeast Asia.

As a part of the procedure to assess refugee claims, the UNHCR is entitled to exclude asylum-seekers from international protection if they are suspected of committing war crimes, crimes against humanity and serious non-political crimes, including torture, in a process called exclusion assessment. …

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