1.
Introduction ^
- How can explicit interpretations of sources of norms help when comparing complex real life legal issues?
2.
Methods ^
Sources of law | FLINT representation |
Reference 1 «Quote from source of norm.»
Reference … «Quote from source of norm.»
Reference n «Quote from source of norm.» | «institutional act type» Action type: verb (as mentioned in source of norm) Actor type: actor (as mentioned in source of norm) Object type: object that is acted upon (as mentioned in source of norm) Recipient type: recipient of the result of the action (as mentioned in source of norm) Precondition: [institutional fact type 1 … n] (as mentioned in source of norm), and the Boolean relation between these institutional fact types Postcondition (creating): object type 1 … n; «institutional act type»; ‹duty type› (as mentioned in source of norm) Postcondition (terminating): object 1 … n; «institutional act»; ‹duty type› (as mentioned in source of norm) |
Table 1: FLINT representation of the institutional acts
3.
The Application of Exclusion Clauses of the UN Refugee Convention in the EU ^
- UK and the Netherlands apply the rules of Article 1F differently. Bahtiyar uses the categorical exclusion of KhAD/WAD officers in the Netherlands as proof that national situation reports lead to different application of 1F policies in EU Member States, a policy much debated in the legal domain. She for pleas for a European institution for asylum related situation reports [Bahtiyar 2016, 242].
4.
FLINT Representations of the Application of 1F Exclusion ^
4.1.
FLINT Representation of the Case of Mr. X in the Netherlands ^
In order to proof that X is a person as referred to in Article 1F (a) and (b) Refugee Convention, the Minister of Justice uses a situation report of the Foreign Minister’s Office on Security Services in Communist.
Sources of law | FLINT representation |
Article 28 (1) Aliens Act Our Minister is authorized: a. to grant, reject, or disregard the application for granting a temporary asylum residence permit; b. to grant, reject, or disregard the application for extending the period of validity if the permit; c. to withdraw a temporary asylum residence permit
Article 31 (1) Aliens Act An application granting a temporary asylum permit, as referred to in Article 28, is rejected if the alien has not demonstrated that his application is based on circumstances which constitute a legal basis for granting a permit. | «reject application for a temporary asylum residence permit» Actor: State Secretary Object: application for a temporary asylum residence permit Recipient: alien Precondition: NOT [alien has demonstrated that its application is based on circumstances which constitute a legal basis for granting a temporary asylum residence permit] Postcondition (creating): rejection of the application for a temporary asylum residence permit Postcondition (terminating): application for a temporary asylum residence permit; lawful residence pending a decision on an application for granting a temporary asylum residence permit |
Table 2: FLINT representation of the institutional act: «reject application for a temporary asylum residence permit»
Sources of law | Derivation rule |
Article 31 (1) Aliens Act An application granting a temporary asylum permit, as referred to in Article 28, is rejected if the alien has not demonstrated that his application is based on circumstances which constitute a legal basis for granting a permit.
Article 3.107 (2) Aliens Decree If Article 1F of the Refugee Convention prohibits the granting of a residence permit to the alien under Article 29 (1) (a) of the Act, that alien shall not be granted a residence permit on one of the other grounds in Article 29 of the Act. | [circumstances which constitute a legal basis for granting a temporary asylum residence permit]
AND NOT
[Article 1F of the Refugee Convention prevents the granting of a temporary asylum residence permit to an alien] |
Table 3: Derivation of institutional fact: [alien has demonstrated that its application is based on circumstances which constitute a legal basis for granting a temporary asylum residence permit]
Sources of law | Derivation rule |
Article 1F Refugee Convention The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
Article 3.107 (1) Aliens Decree A person who has turned on, or otherwise participated, in the crimes or acts mentioned in article 1F, counts a person as referred to in Article 1F of the Refugee Convention. | [person has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments]
OR
[person has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee]
OR
[person has been guilty of acts contrary to the purposes and principles of the United Nations]
OR
[person has urged others to commit crimes or acts mentioned in Article 1F, or otherwise participated in those crimes or acts] |
Table 4: Derivation of institutional fact: [Article 1F of the Refugee Convention
prevents the granting of a temporary asylum residence permit to an alien, who is a refugee]
Paragraph | Quotes from the decision of the Council of State |
2.1.3. | «[The] Secretary of State [...] has decided that ... from the situation report ... it can be deduced that [X] given his officer function must have been personally involved in crimes as referred to in Article 1F, preamble and under (a) and (b).» |
2.2.1. | «[A] situation report ... [should] provide information, in an impartial, objective and insightful manner, with the indication of the sources from which it is derived, as far as possible and reasonable.» |
2.2.1. | «[The] State Secretary [can] rely on the accuracy of the information in the situation report, unless there are specific points of concern for doubt as to the accuracy or completeness thereof.» |
2.2.5. | «The District Court, however, was wrong to consider the UNHCR Note as a specific point of reference for doubt as to the accuracy and completeness of the situation report.» |
2.2.5. | «The District Court, however, was wrong to consider [the opinion of Giustozzi as referred to in] the UNHCR Note as a specific point of reference for doubt as to the accuracy and completeness of the situation report.» |
2.2.6. | «[The] State Secretary [was] right to use the situation report as a ground to decide that [X] was responsible for crimes as referred to in Article 1F (a) and (b) .» |
Table 5: The decision of the Dutch Council of State on the qualification of X as a person as referred to in Article 1F (a) and (b) Refugee Convention
4.2.
FLINT Representation of the Case of DS in the UK ^
Sources of law | Derivation rule |
Section 55(1) Immigration, Asylum and Nationality Act 2006 (1) This section applies to an asylum appeal where the Secretary of State issues a certificate that the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because – (a) Article 1(F) applies to him (whether or not he would otherwise be entitled to protection), or (b) Article 33(2) applies to him on grounds of national security (whether or not he would otherwise be entitled to protection). | [Article 1F applies to the person issuing an asylum appeal (whether or not he would otherwise be entitled to protection)] |
Table 6: Establishing the relation between Article 1F Refugee Convention and British sources of law
Sources of law | Derivation rule |
Article 1F Refugee Convention The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. | [person has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments]
OR
[person has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee]
OR
[person has been guilty of acts contrary to the purposes and principles of the United Nations] |
Table 7: Derivation of institutional fact: [Article 1(F) applies to him
(whether or not he would otherwise be entitled to protection)]
The Immigration Judge concludes that the KhAD undertook acts of the type described in Article 7 of the Rome Statute and that these could be described as widespread and systematic, particularly during the early 1980s. However, she also concludes that these acts were not primarily directed against the civilian population as whole. The actions were «primarily directed at insurgents and … they do not therefore fall within the definition of ‹crimes against humanity›» [Court of Appeal 2009, 20].
Paragraph | Quotes from the decision of the Council of State |
55 | «KhAD committed human rights violations on a large scale.» |
55 | «The [Dutch situation] report ... concluded that KhAD was a brutal organisation which used torture in a systemic manner against anyone suspected of not supporting the government.» |
55 | «Dr Giustozzi ... [accepts] that torture had been used extensively by KhAD ... and that it was unclear whether the persons targeted by KhAD could properly be described as civilians or insurgents.» |
58 | «The attacks carried out by KhAD were primarily directed at insurgents and … they do not therefore fall within the definition of ‹crimes against humanity›.» |
68 | «[The] absence of a specific statement by Dr Giustozzi that KhAD was targeting insurgents rather than civilians is [not] sufficient to undermine the immigration judge’s conclusion on the issue ... as to the applicability of … ‹crime against humanity› in Article 1F(a)).» |
75 | «[The] Secretary of State might have had a case against DS under Article 1F(b) or (c) had the evidence and argument been presented in that way. But that was not the case advanced.» |
Table 8: The decision of the UK Court of Appeal on the qualification of DS as a person as referred to in Article 1F (a) Refugee Convention
4.3.
Comparing Policies on the Application of Exclusion Clauses ^
5.
Discussion and Conclusion ^
6.
References ^
Bahtiyar, Z. Yakut, Exclusion clauses of the Refugee Convention in relation to national immigration legislations, European policy and human rights instrument, WLP, Nijmegen (The Netherlands) 2016.
Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, Geneva, 1950.
Council of State, Administrative Jurisdiction Division, ECLI:NL:RVS:2009:BJ8654 (in Dutch).
Court of Appeal, DS (Afghanistan) v. Secretary of State for the Home Department, [2009] EWCA Civ 226, 2009.
Doesburg, Robert van/Engers, Tom van, A Formal Method for Interpretation of Sources of Norms, AI and Law, 26-1, 2018 (to be published).
Doesburg, Robert van/Engers, Tom van, Arguments on the Interpretation of Sources of Law, AICOL, 2018 (to be published).
Doesburg, Robert van/Engers, Tom van, Perspectives on the Formal Representation of the Interpretation of Norms, Frontiers in Artificial Intelligence and Applications, 2016, pp.183–186.
Doesburg, Robert van/Storm, Tijs van der /Engers, Tom van, CALCULEMUS: Towards a Formal Language for the Interpretation of normative Systems, Artificial Intelligence for Justice Workshop, ECAI, 2016.
Minister of Justice, Vreemdelingenwet (Aliens Act), Version 25 March 2009, http://wetten.overheid.nl/jci1.3:c:BWBR0011823&z=2009-03-25&g=2009-03-25 (all websites accessed on 31 October 2017), 2001 (in Dutch).
Minister of Justice, Vreemdelingenbesluit (Aliens Decree), Version 2 May 2009, http://wetten.overheid.nl/jci1.3:c:BWBR0011825&z=2009-05-02&g=2009-05-02, 2001 (in Dutch).
Ministry of Foreign Affairs, Asylum and Migration Division, Security services in Communist Afghanistan (1978–1992), The Hague, 2001.
Searle, John, The Construction of Social Reality, 1995.
UK Parliament, Immigration, Asylum and Nationality Act 2006 (version of 24 December 2008), London, 2006.
UN, Convention and protocol relating to the status of refugees, Geneva, 1951.
UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, Geneva, 2003.