Abstract
Asylum claims lodged by individuals who were involved in drug activities prior to their entry into the country of asylum raise complex questions as to whether they have committed a serious non-political crime under Article 1F(b) of the 1951 Convention and thus shall be excluded from refugee protection.
The 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Trafficking Convention) — which is the relevant international framework for drugs in the field of international criminal law — indiscriminately considers all forms of supply related drug offences as `serious criminal offences', irrespective of individual criminal responsibility. This conflicts with the complex nature of the drug industry particularly in countries affected by armed conflict and proportionality considerations inherent to Article 1F(b).
Articles 31 and 32 of the Vienna Convention on the Law of Treaties provide a possibility to reconcile the ambiguous wording of the Trafficking convention with Article 1F(b) by means of interpretation. Offences for personal consumption as the least serious drug offences do not reach the seriousness threshold of Article 1F(b). Trafficking offences in turn attain the seriousness threshold only if aggravating circumstances prevail over mitigating circumstances, and if there are no grounds for rejecting individual responsibility or defenses to criminal liability. International, large-scale activities carried out by transnational organized criminal groups are factors that make drug offences most serious.
Citation
Gottwald, Martin, ‘Asylum Claims and Drug Offences: the Seriousness Threshold of Article 1F(b) of the 1951 Convention Relating to the Status of Refugees and the UN Drug Conventions’ (2006) 18 Int J Refugee Law, 81.