The Syrian exodus and perpetrators of international crimes

By Maarten Bolhuis –

The Syrian civil war has produced a refugee flow that is expected to pass the four million boundary before the end of the year. Although this massive displacement mainly burdens surrounding countries and only a very small fraction of these refugees reaches the European Union, in many European countries the influx of Syrian asylum seekers is still considerable. In the Netherlands, for instance, six thousand Syrians applied for asylum during the first eight months of this year. About ninety-two percent of all Syrian asylum seekers are currently granted a temporary residence permit. Right-wing politicians warn that this high acceptance rate will create a safe haven for ‘terrorists and war criminals’. Considering the scale of the influx and the nature of the conflict, it is likely that there are indeed perpetrators of international or other serious crimes among the refugees. But how do the immigration authorities identify alleged war criminals when so many people apply for asylum and so many different parties commit crimes? And are concerns that they will find a safe haven justified?

At the end of the 1990s, Dutch media reported on encounters between Afghan torturers and their victims in the supermarket. This image of war criminals roaming around freely led to public outrage and induced a stricter application of Article 1F of the Refugee Convention in the Netherlands. This ‘exclusion clause’ excludes from refugee protection those against whom there are ‘serious reasons for considering’ that they committed international crimes, serious non-political crimes or acts contrary to the purposes and principles of the United Nations. By now, around nine-hundred asylum seekers, about half of them from Afghanistan, have been excluded in the Netherlands on the basis of Article 1F.

The high Syrian influx brings about many challenges for the specialised ‘1F-unit’ of the Dutch immigration service. As the conflict is still ongoing, the number of belligerent parties keeps growing and the conflict has become part of a regional war because of the foundation of the Caliphate by ISIL, access to accurate and up-to-date information is probably the biggest challenge this unit faces. To strengthen its information position, the 1F-unit started a project specifically aimed at gathering and disclosing information relating to the Arab Spring, including the Syrian civil war. Furthermore, international cooperation is strengthened, while IND employees processing Syrian cases receive additional instructions on how to detect asylum seekers to whom Article 1F might apply.

The number of 1F-exclusions of Syrians is on the rise. Until 2013, Article 1F was applied to only a handful Syrian asylum seekers in total. In the first six months of 2014 it was deemed applicable in five cases already. This is a considerable amount taking into account that over the last five years the total annual number of exclusions in the Netherlands fluctuated between twenty-five and thirty. Despite the vulnerable information position the immigration authorities have, the number of exclusions is thus substantial.

Who are these excluded Syrians? A spokesman of the immigration service recently stated that in ten recent cases, the application of Article 1F related to persons associated with the Assad regime. This might mean that there are no opposition fighters among asylum seekers in the Netherlands, for instance because they are not in a position to get there or because they have less incentives to seek refuge abroad. It could also mean that there are no indications that opposition fighters who apply for asylum in the Netherlands have committed 1F crimes. Taking into account its vulnerable information position, another likely explanation would be that the immigration authorities have difficulties recognising opposition members or getting enough information to support the conclusion that Article 1F applies.

Whatever the reason, a similar picture emerged with the exclusion of Afghan asylum seekers ten to fifteen years ago, in the sense that almost all of the excluded were associated with the formal government. Rather than the Taliban or Mujahedin, they were linked to the secret services of the communist Afghan government. And there are more similarities between the current Syrian and earlier Afghan refugee flow with respect to the applicability of Article 1F. For instance, while the influx is high, no one is forcibly expulsed to Syria at the moment because of the refoulement prohibition in Article 3 ECHR. In practice, this means that the excluded individuals will typically stay – illegally – in the Netherlands until the situation will be safe enough for them to return. The case of Afghanistan shows that such a deadlock situation can last for many years. As the Dutch government refuses to offer protection to people to whom 1F applies, even if their non-removability is durable, and the applicability of 1F is not lifted by the passage of time, the excluded Afghans continue to live in a situation which could best be described as a ‘legal limbo’. They have no rights and nowhere to go to. As long as Syria remains an insecure place it is foreseeable that excluded Syrians will meet the same fate.

Another similarity between the excluded Afghans and Syrians is that there is only a small chance that exclusion will be followed by criminal prosecution, either in the Netherlands or elsewhere. Despite the fact that the jurisdiction for 1F crimes has expanded and that Dutch police and prosecutors, with their specialised teams, are in a better position to secure evidence than fifteen years ago, prosecution on the basis of universal jurisdiction is hampered by the challenges inherent to investigating crimes which happened in an inaccessible and far-away country, possibly years ago. Extradition to Syria or any other country requires a government that is willing and a judicial system that is capable of prosecuting international crimes. A situation in which these requirements are fulfilled is, at least in the foreseeable future, not very likely to occur.

There is no prospect that the Syrian civil war will end any time soon. Refugees will keep coming and the number of Syrian 1F-exclusions will grow. Chances these alleged perpetrators will be prosecuted and can be deported in the near future are slim. As you read this, a new class of international pariahs who end up in a legal limbo is created. It is time for Dutch government to think of a sustainable policy to deal with these individuals.