Joseph Rikhof, the Criminal Refugee

344 Book Reviews / African Journal of Legal Studies 5 (2012) 339–346

Joseph Rikhof, The Criminal Refugee: The Treatment of Asylum Seekers With a Criminal Background in International and Domestic Law (Republic of Letters Publishing, Dordrecht 2012).

Hardbound ISBN 9789089791115; EUR 75; USD 99 (2012) 650 pp. Paper- back ISBN 9789089791122; EUR 39; USD 49 (2012) 650 pp.

What should States do when they receive asylum seekers who they suspect may have a criminal background? Dr. Joseph Rikhof, both an academic and a government lawyer (currently Senior Counsel with the Crimes against Humanity and War Crimes Section of the Department of Justice, Canada), is particularly well positioned to provide an answer to this seemingly simple, yet exceedingly complex legal question.1 While the right to asylum for refugees was recognised in the Universal Declara- tion of Human Rights and the 1951 Refugee Convention, the right to asylum has always been restricted with regard to criminals. Exclusion law is a dynamic legal regime influenced by new developments in related fields such as international human rights and refugee law, international criminal law, transnational criminal law, and domestic criminal and asylum/immigration law. This complexity is reflected in The Criminal Refugee,which is in fact the first published monograph focusing exclusively on the subject matter on refugee exclusion law. This particular field of international law and domestic jurisprudence has till now been treated in the standard international refugee law books by authors such as Grahl-Madsen, Goodwin-Gill and Hathaway,2 as well as in articles,3 and commentaries.4 However, the developments in international criminal law and the renewed focus on exclusion issues writ large in many states after 9/11 has begged for a new comprehensive treatise on the subject matter of how to deal with alleged criminal asylum seekers.

1) Rikhof holds a PhD from the Irish Center for Human Rights, National University of Ireland, and the book builds partly on his PhD thesis as completed in 2011. He has published several articles on the law related to organised crime, terrorism, genocide, war crimes and crimes against humanity, especially in the context of immigration and refugee law. 2) See, e.g., A. Grahl-Madsen, The Status of Refugees in International Law, Vol. I (Sijthoﬀ, Leiden, 1966) 262–304; J.C. Hathaway, The Law of Refugee Status (Butterworths, Toronto, ON, 1991) 214–229; G. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd edn (Oxford University Press, Oxford, 2007) 162–197 and 262–264. Issues of exclusion have furthermore been treated in books with a somewhat diﬀerent or more limited scope, see, e.g., K. Wouters, International Legal Standards for the Protection from Refoulement (Intersentia, Antwerp, 2009) 113–131. Exclusion law has also been discussed from the perspectives of international law, transnational law and/or domestic law in many books and articles published in other languages than English. 3) In addition to a number of singular articles on the theme, see P.J. van Krieken (Ed.), Refugee Law in Context: The Exclusion Clause (TMC Asser Press, The Hague, 1999). 4) See in particular A. Zimmermann (Ed.), The 1951 Convention relating to the Status of Refugees and Its 1967 Protocol – A Commentary (Oxford University Press, Oxford, 2011) 579–610 and 1397–1423.

The Criminal Refugee examines relevant jurisprudence at the international and domestic levels, which according to Rikhof has attempted to balance the right of asylum for an individual against the right of the state of refuge to restrict this right in situations of criminality. Spanning 635 pages of detailed texts, footnotes and tables this book substantially advances the knowledge base in the field of refugee law. Rikhof presents a wealth of relevant information in a well-organised manner. The structure of the book is logical, with sufficient flexibility to fit the various subjects discussed. In addition to the more descriptive level of analysis, Rikhof provides a number of clear-sighted observations throughout the book, which are often compiled in concluding sections that make the book both more readable and enjoyable. Chapters 1 and 2 frame out the necessary legal and historical context, within the parameters of human rights and asylum law. Chapter 3, perhaps the core chapter of the book, treats exclusion of asylum seekers who may have committed crimes as defined by Article 1 F of the Refugee Convention. Here Rikhof excels, making use of his combined expertise in current international criminal law and comparative exclusion law. Chapter 4 deals with the additional exceptions from refugee protection against refoulement (i.e., return to persecution or similar threats) and expulsion, based on similar concerns with criminality and national security. This chapter further surveys current international jurisprudence of several international courts and judicial bodies, inter alia, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee and the United Nations Committee against Torture. Chapter 5 analyses alternatives to refoulement of the criminal refugee; prosecu- tion, extradition, detention and humanitarian solutions. The last chapter draws some final conclusions. As Rikhof correctly points out, the exclusion rules of Article 1 F are at the core of exclusion law. Nevertheless, the structure of Article 1 F has caused serious interpretative problems. It is clear that Article 1 F(a) is concerned with crimes against peace [aggression], crimes against humanity and war crimes. It is also clear that genocide crimes are considered implicit in the category of crimes against humanity. These so-called core crimes of international criminal law (ICL) are thus all part of Article 1 F(a). What remains to be clarified, and which Rikhof thoroughly discusses in the book, are the ‘underlying crimes’ of crimes against humanity and war crimes – e.g. acts of torture, rape, persecution, and child recruitment – and the forms of extended liability (ordering, planning, aiding and abetting, joint criminal enterprise, etc.) that are applicable in addition to direct commission of these crimes. The content and delimitations of Article 1 F(b), on “serious non-political crimes”, and Article 1 F(c), on “acts contrary to the purposes and principles of the United Nations”, are far less clear with regard to which crime categories they cover. Rikhof provides much food for thought here. He may arguably have carried his analysis to