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Current International Law and Refugee Issues (JUS352)

Vår 2004:

The exam can be written in English orNorwegian.
Note that the exam consists of two different parts (I and II).

Part I (27 points)
In 1997 the New Zealand Refugee Status Appeals Authority [henceforth the Authority] had a particularly complex case before it. The facts of this case are outlined in the following. Read the text carefully.

Refugee appeal no 70100/96?

The appellant’s first claim for asylum

The appellant is a 36 year old single man from Iran. He arrived in New Zealand on 19 February 1992 at Auckland International Airport where, upon questioning, he applied for asylum.

His claim for asylum centred on the fact that he came from a family which was strongly pro-monarchist in that his father was a member of the Shah's political party and the six children, comprising five brothers and one sister, were encouraged by their parents to actively work for the return of the Shah and his family to Iran. As a result, the eldest brother was suspended from his job in 1982 for distributing pro-Shah pamphlets at his office. He was reinstated after three months. The sister, a school teacher was dismissed in 1983 after being found in possession of monarchist literature. The fifth eldest child was arrested in 1990 and imprisoned for six months after being caught distributing photographs and pro-Shah pamphlets at his place of work. This brother subsequently left Iran to work in Japan. It was said that he could not return to Iran. The youngest brother was arrested in November 1991 and sentenced to two years imprisonment after he too was caught distributing photographs and pro-Shah pamphlets.

For his part, the appellant was jailed for three months in January 1982 when caught distributing pro-Shah pamphlets at the high school he was then attending. After his release he continued with his schooling and later successfully completed his military service. In June 1986, following his discharge from the army, he found employment with a bank, but when the manager found out two months later that the appellant had been jailed for anti-government activities, he was dismissed. Looking for a better future, he obtained a passport in March 1987 and approximately 15 months later, in June or July 1988, travelled to Turkey and then to Bulgaria in search of employment. His search was unsuccessful.

At the end of July 1988, upon his return to Iran, the appellant took part in a pro-Shah demonstration in front of Tehran University. Along with about 300 other people he was arrested and detained for 10 days. During this period he was interrogated and claims that he was beaten with cables and burnt with hotplates on his right hand and left shoulder. His interrogators wanted information concerning the leaders of the demonstration. On the tenth day the appellant was released.

Thereafter the appellant went to live with one of his brothers and found employment as an auto-electrician. Subsequently the appellant moved to Kuwait where an aunt lived and there found work as a driver for a carpentry company. However, following the invasion of Kuwait by Iraq, the appellant returned to Iran. He claims that apart from his clothes and personal effects, he returned with a large quantity of books and pamphlets relating to the Shah, along with photographs of Reza Pahlavi (the Shah's son). On return to his home town he began to distribute the photographs and pamphlets to friends and also left them at houses and other buildings. In October 1990 the appellant was arrested and required to confess to his activities. When he refused he was beaten with cables and had one of his finger-nails extracted. After 10 days of interrogation the appellant was jailed for six months. He was released only after a friend surrendered the title deeds to his (the friend's) house as a bond. The appellant had to report to the authorities fortnightly.

With the assistance of a friend the appellant found work in a laboratory developing photographs. However, after two months the authorities discovered that he was in employment and required that the appellant be dismissed. He said that he was unable to leave Iran at this time as the authorities had seized his passport. By paying a bribe to an official the appellant was able to leave Iran travelling on his own passport and he left for Malaysia on 15 February 1992. He claimed that following his arrival in New Zealand he had been advised by his family that the authorities had been looking for him, had interrogated his father and had demanded to know the appellant's whereabouts. The father had told the authorities that he did not have this information. The appellant also claimed that were he to return to Iran he would be persecuted as no matter what happened, he would continue to work for the reinstatement of the monarchy.

By letter dated 17 May 1993 the appellant’s application was declined. From this decision the appellant appealed to this Authority. The appeal was heard on 18 October 1994. The Authority rejected the appeal on 31 January 1995, concluding:

"[W]e do not accept the appellant's account of his political activities, and punishments. We therefore find that the appellant is not in fear of persecution for a Convention reason."

The appellant’s second application for asylum

From Wednesday, 15 February 1995 to Friday, 24 February 1995 the appellant held a protest at the ground floor entrance to the building in which the Authority is housed. The protest was in the form of a hunger strike and for the first three days the appellant sealed his lips by driving three safety pins through them. The protest attracted publicity in both the printed media and on television. On Friday, 24 February 1995, at the conclusion of the protest, the appellant lodged a second asylum application in which he claimed to be a refugee sur place:

“I claim asylum as a Refugee sur place on the grounds of my political opinion (strong believer in democracy). I sincerely believe in democracy and have done so all my life, and believe strongly in all the provisions as outlined in the New Zealand Bill of Rights 1990. Since my arrival in New Zealand I have experienced democracy in action and I am now a confirmed democrat.

As you may be aware, I have received considerable media coverage. This has caused the Iranian Embassy in Wellington to be aware of my protest, and my views of what happened to me in Iran. This automatically has brought me to the attention of the Iranian authorities and caused me to fear severe repercussions if I were ever returned to Iran. The Iranian authorities are now aware of my dislike for their government and my alternative political opinion (belief in democracy), as stated earlier, people with this type of opinion are regularly persecuted and detained by the authorities in Iran, and this endorses my claim for asylum as a Refugee sur place. As I have lived in democratic New Zealand for nearly three years, and have experienced freedom and democracy, I cannot return to Iran which has 99,000 people in prisons due to their opposition to the current regime."

The appellant further claimed that as a result of his protest activities in New Zealand, his father had been detained by the Iranian authorities and questioned about the appellant. During the course of the interrogation, the father had been shown a photograph of the appellant taken in Auckland during the protest and which had been published in an Auckland suburban newspaper.

The appellant’s explanation for his protest / hunger strike

During a three day hearing of the second appeal the appellant gave the following explanation for his protest.

He claims that on the 14 February 1995 he learnt from his lawyer that the appeal had been dismissed. He claims that upon his return home he pondered over the matter and decided that he would hold a hunger strike outside the Authority's premises. He hoped to thereby prove that he had been imprisoned in Iran for political reasons and had been tortured. He believed that the protest action was necessary to save his life. On the morning of 15 February 1995, the appellant drove into town, arriving outside the Authority's premises at approximately 9.00am or 10.00am. He had with him two placards one of which stated: “I came to New Zealand to save my life - after three years the New Zealand Government has decided that my life is not worth saving.’ He could not recall what the other placard said.

The appellant's evidence is also that as he was driving into the city he had a spontaneous idea to pin his lips together and it just so happened that there were three safety-pins already in the vehicle which would allow him to carry out his idea. He had not purchased the pins personally and had no idea why they were in his motor vehicle. After parking his vehicle [near the immigration Authority's premises] he inserted three safety-pins through his lower and upper lips, thereby sealing his mouth. He claims that he did not think of the consequences of his actions and in particular, the consequences of the publicity he would attract.

Evidence submitted by the appellant

To support his claim for asylum the appellant submitted several articles from major news sources in New-Zealand. What follows are excerpts from two of these articles.
NZ Herald, Thursday, February 23, 1995
Lips pinned in protest

Workers and visitors to a central Auckland office block were horrified yesterday by an Iranian man's bizarre protest against being refused asylum. [The appellant] had sealed his lips by driving three safety pins through them as part of a hunger strike outside the secretariat of the Refugee Status Appeals Authority in Swanson Towers. The 33-year-old Iranian was unable to speak without loosening the pins, but he indicated an intention to continue a round-the-clock vigil without food or liquids. He spent most of the day by himself with a placard declaring: "I came to New Zealand to save my life - after three years the New Zealand Government has decided that my life is not worth saving". An immigration consultant involved in the case, Mr Gene Leckey, angrily denied a suggestion from the Government that others might have encouraged [the appellant] to seek attention in such a way. The suggestion came from the Minister of Immigration, Mr Maxwell, who insisted that the Iranian had received fair hearings both from his department and the appeals authority. Mr Leckey said his client had been fuming over the authority's refusal to believe his accounts of torture during various periods of imprisonment in Iran, allegedly for activities in support of that country's deposed monarchy. He said [the appellant] initially threatened to kill himself in the authority's offices, but Mr Leckey said he tried to dissuade him by promising to explore other avenues. [The appellant], who arrived in New Zealand almost exactly three years ago, said in his application for asylum that he had been jailed three times in Iran for his political activities and tortured extensively on two of these occasions. He said he came from a strongly pro-monarchist family which included an 18-year-old brother who was still in jail for distributing pamphlets and books and another who had fled to a hard life in Japan. Other family members were unable to get work because of their political activities. His application referred to scars from torture by hot metal objects, and the removal of a fingernail. Although the fingernail had since grown back, [the appellant] yesterday pointed to marks there and on a hand and upper arm as evidence of torture".

NZ Herald, Thursday, February 23, 1995
" The Iranian Embassy in Wellington says Auckland hunger-striker [the appellant] is using tactics of a "despicable fashion" in trying to claim asylum in New Zealand. The embassy said last night that it would help [the appellant] return to Iran and that claims of being tortured in Iranian prisons from a man who tortured himself by sealing his lips together with safety pins were "ridiculous." The statement denies [the appellant’s] claims that he was tortured.”

Determine the merit of the appellant’s claim for protection under the 1951 Refugee Convention and the Convention against Torture.

Part II (12 points in total)

The answers to the following questions should be brief. Use short sentences and concentrate on key points.

A) Detention: What, if any, constraints do

• the 1951 Refugee Convention
• the International Covenant on Civil and Political Rights
• the Convention on the Rights of the Child,
• the European Convention on Human Rights

place on [Contracting] States’ power to detain asylum seekers? (3 points)

B) Under what circumstances may “prosecution” amount to “persecution” within the meaning of Article 1 of the 1951 Convention? (3 points)

C) Explain the notion of “agents of persecution”. (3 points)

Vår 2003

For candidates who have not written the academic paper:

Explain the rule of non-refoulement. Compare different legal bases under international law and discuss its scope and limitations.

The examination paper can be written in English or in Norwegian.

For candidates who have followed compulsory lectures and have written the academic paper: 20 questions Exam

All 20 questions should be answered. An answer should as a rule not exceed more than one page. Use short sentences and concentrate on key points.

1. What are the main parts and characteristics of the current international refugee regime?

2. What were the dilemmas faced by UNHCR in the 1999 Kosovo refugee crises?

3. How were they resolved (cf. question 2)?

4. What are the similarities and differences between a legal definition of refugee and a sociological definition as proposed by Zolberg, Suhrke and Aguayo?

5. How does a person become a refugee under international law?

6. Explain the concept of “persecution” in the refugee definition.

7. A woman claims to have been raped by soldiers during a civil war. She applies for asylum. Would she be recognised as a Convention refugee? Explain why or why not.

8. When does a State usually become responsible for refugee protection of a particular person? Explain why.

9. Explain the rule of non-refoulement.

10. What were the apparent innovative practises in the international refugee regime brought on by the protacted Indochina refugee crisis in the 1979-1989 period?

11. What were the main forced behind the changes (cf question 10)?

12. What is the meaning of “subsidiary protection”?

13. Why is the Chahal-case decided by the European Court of Human Rights in 1996 so important today?

14. What is “externalised processing” of asylum claims?

15. Explain the key developments in the EU harmonisation of asylum law under the Amsterdam Treaty.

16. What is the interrelationship between procedural and substansive aspects of harmonisation (cf question 15)?

17. What is the legal nature of the recognition of refugee status, and which purpose should the standards for examination procedures serve under international law?

18. How does the Refugee Convention protect refugee’s rights, and how do the Convention standards compare with those under general human rights treaties?

19. Explain the legal meaning of “temporary protection” and the compatibility of such protection with the Refugee Convention.

20. Unlike other Western democracies, the United States considers itself a “nation of immigrants” best embodied in the majesty of the Statue of Liberty in New York harbor. National myths aside, how accurate is this image?

Vår 2002
A.
The concept of "membership of a particular social group" - its interpretation, application and function as part of the refugee definition.

B. 
Express your thoughts on the limitations of the current international refugee regime.

Both A and B must be answered.

Høst 2001
The concept of persecution

Høst 2000
Discuss issues of interpretation relating to the expression "well-founded fear of being persecuted for reasons of ... membership of a particular social group".

Vår 2000
PART 1. CASES.
Answer all three questions, i.e. I A, B and C.

Mohammed Ali applied for asylum in Norway 15 April 1999. He had no passport or other documents that could substantiate his alleged identity or travel route.

During the asylum interview he claimed that he was 32 years of age and that he came from the country Valonia. He stated that there was an ongoing civil war in Valonia and that he did not want to return to this "horrible war". In this context, he referred to the vast number of his countrymen that recently had fled the country because of the terrible situation there.

Mohammed gave a detailed account of his upbringing in a town on the west coast of Valonia, not far from the capital. His family had been relatively well off, and Mohammed had acquired a degree in engineering. After his university studies Mohammed returned to his hometown where he got a position at a state owned weapon factory. Given the sensitive nature of the factory's production (i.e. military hardware for the Valonian navy) Mohammed had to go through an extensive security investigation before he was accepted for this position.

In the autumn of 1998, the civil war in Valonia spread to the areas close to Mohammed's hometown. As a consequence, the weapon factory closed down and the production moved to a safer place in the country. Despite these developments, Mohammed stayed in his hornetown. In December 1998 insurgent ("rebel") forces took control of the town. In the opinion of the rebel forces, many of the inhabitants of the town had collaborated with the Government in the oppression of certain ethnical and religious groups. In their view, it was therefore necessary to exterminate "corrupt and dangerous elements" of the population. Everybody previously employed by the state (including those formerly employed by the weapon factory), was ordered to report to the insurgent party. Those who complied with this order were detained and many summarily executed. In addition, thousands of people were deported to prison camps in other parts of the country, including Mohammed's family and most of his other relatives. Mohammed was later informed that an anti tank mine had blown up the truck transporting his family.

When the rebel forces occupied the town, Mohammed sought refuge at a friend's house. His friend had not worked for the Government. However, Mohammed did not feel safe. He feared that the factory's record of former employees (including the information obtained through the security investigations) had not been destroyed when the factory closed. Thus, he realized that he had to leave the country. Approximately two months after the rebels had seized Mohammed's hometown he was smuggled out of the country by a "government
friendly organization". He stayed for a short period of time in a neighboring country where he obtained the travel documents that enabled him to flee to Norway.

Mohammed asserted that he had sent the travel documents back to the "organization" that had assisted him, after he had arrived in Norway - just as he had been told. The documents were apparently needed to assist others. During the interview he refused to reveal the travel-route "out of consideration for other persons in need of asylum".

Mohammed stated that after his arrival in Norway he had learned much more about the gross violations of human rights committed by the Government of Valonia. Thus, if he was returned to Valonia, and managed to avoid the rebels, he would most likely be forced to produce weapons that would be used against innocent people contrary to his beliefs. Given his age, he could even be drafted and forced to fight in a war, which he now considered to be cruel and pointless.

Question I A.
Assess the merits of the case for refugee status under the 1951 Refugee Convention.

The Norwegian immigration authorities (UDI) rejected Mohammed's application for asylum 15 December 1999, on the ground that the story presented was not credible. It was stated that the authorities attached particular weight to the fact that Mohammed had destroyed his passport and refused to reveal his travel route to Norwegian authorities for no good reason. It was also stated "the UDI can not rule out the possibility that the applicant is in fact coming from another country in the same region". Mohammed appealed to the Ministry of Justice.

Two months later Ines Khan arrived in Norway and applied for asylum. In the asylum interview Ines claimed to be 16 years of age and the niece of Mohammed. After being separated from her own family nearby the capital of Valencia (where they had been living) she had, miraculously, managed to escape the rebel controlled area. Later a friend informed her that the rebels had probably killed all of her family members. She already knew that Mohammed had fled the country and was staying in Norway. She managed to contact Mohammed through a Non Governmental Organization. Mohammed used his contacts to arrange for her to come to Norway. In the official report from the asylum interview it was noted that Ines appeared to be entirely credible.

Ines claims to be protected against return by the Convention on the Rights of the Child. She refers to articles 3, 22 and 37(a). The fighting in Valencia is still going on and has even escalated in most parts of the country, although the Government controlled capital has not come under attack and remains relatively safe. However, the situation for young women in the city is rather precarious. Reliable reports have indicated widespread abuses committed by governmental troops, including several cases of forced prostitution.

Question I B:
Assess the merits of the case for protection under the Convention on the Rights of the Child, on the basis of all the relevant facts stated above. If you think that additional information would be required, clarify why such information could be vital from a legal point of view.

Question I C:
Can Ines' case affect the assessment of Mohammed's appeal?

Part 11. Theory.
In this part you shall choose either question 2 or 3.

Question 2:
Discuss the notion of non-refoulement

Question 3:
Discuss major changes in the scope and function of the international refugee regime and why these changes have taken place.

Høst 1999
The rule of non-refoulement.

Vår 1999
PART I - CASES
In this part you shall answer all three questions; I A, B and C.

Case of Franco Berisha
Franco Berisha applied for asylum in Norway in May 1997. He told the Norwegian police that he had paid a network called "Friends of Kosovo" a substantial amount of money. They had helped him to cross through Albania and take a boat during night to ltaly. In ltaly he had received false travel documents that enabled him to get transportation to Norway by plane.

In the asylum interview he stated that he was 27 years of age and came from Pristina in Kosovo, where he had been employed as a local bus driver. He explained that the situation in Kosovo had been tense, and for many people very dangerous, for several years, in fact since Milosovic carne to power in the former Yugoslavia. Although he had not personally had problems with the police, he feared that the general situation could only get worse as long as the present regime was still in power in Beograd. He admitted though, that the bus drivers union in Kosovo had kept a low profile and that its leaders officially supported a cautious and neutral line in the political fight between the Kosovo-Albanian leadership and the Serb authorities.

In addition, Franco had been afraid that he could be forced to join the illegal Kosovo Liberation Army (UCK). He claimed that many of his colleagues were probably already secretly recruited. Furthermore, one week before he left he had been told under four eyes, by one of them, that another colleague, who had recently been found dead in his bus by night, had not in fact been murdered by the police or Serb hit-men as most people had believed. The conversation was meant to be a clear warning for himself, he thought, especially since he - during a rather heated discussion in the local union - was one of the few who had spoken in favour of the Norwegian sponsored "Reach Out" movement, which tried to arrange common meetings and cultural events for young Albanians and Serbs in Pristina.

The Norwegian Immigration Directorate (UDI) rejected his application for asylum in December 1997. In its decision, UDI pointed out that Franco Berisha had not been singled out for persecution by any relevant authorities and that he did not face a higher risk to his life or freedom than many others in his country. Thus he was not a refugee within the meaning of the 1951 Convention (a requirement for "asylum" in Norway). Since it was difficult to return him right now, however, because Yugoslavia for the time being refused to take back any Kosovo-Albanian asylum-seeker in Europe, he was granted temporary residence for one year in Norway.

Question lA:
Was Franco Berisha a refugee within the meaning of the 1951 Convention in 1997?

Franco appealed the rejection of asylum to the Ministry of Justice in January 1998. He claimed that since the UCK had started their operations, although still limited, Kosovo was in reality now in a state of civil war.

Question 1B:
What - if any - is the legal significance of a civil war or armed conflict in the country of origin, with a view to the question of refugee status?

The appeal was rejected in May 1998. In December 1998, his residence permit was renewed for another six months. In the period between May 1998 and March 1999, the situation in Kosovo became explosive. In March 1999, NATO started its well-known bombing campaign against Yugoslavia. In the beginning of May 1999, more than 600.000 Kosovo-Albanians had fled to Albania, Macedonia and Montenegro. In interviews, they referred to brutal ethnic cleansing by Serb forces and para-military groups as the main reason for fleeing.

Norway and a few other states committed themselves to receive some of the refugees. The Norwegian Government decided that the Kosovo-Albanians who were transferred to Norway, as well those Kosovo-Albanian asylum-seekers with unsettled cases in Norway, should all get collective protection and temporary residence permits until the conditions in Kosovo would allow for their repatriation. Pending asylum cases would be suspended. No Western government had so far been willing to recognise the Kosovo-Albanians deported or fleeing from Yugoslavia in 1999 as "refugees" within the meaning of the 1951 Convention.

Question 1C:
Assuming that Franco Berisha had not been a refugee before, could he be - or is he - a refugee now? Explain your point of view.

PART II - THEORY
In this part you shall choose either question 2 or 3.

Question 2:
Discuss the international law implications of a suspension of regular asylum procedures in cases of temporary collective protection.

Question 3:
Discuss major changes in the scope and function of the international refugee regime and why these changes have taken place.

Vår 1998
PART 1. CASES.

In this part you shall answer all three questions, i.e. I A, B and C.

Mohammed Ali applied for asylum in Norway 15 May 1997. He had no passport or other documents which could substantiate his identity or travel route.

In the asylum interview he stated that he was 32 years of age and came from the country Valonia. He stressed that there was civil war in Valonia and that he did not want to return to this "horrible war". He explained that several hundred thousands of his countrymen had fled the country.

Mohammed gave a detailed account on his upbringing in a town at the westcoast of Valonia, not far from the capital. His family had been relatively well off, and Mohammed had acquired a degree in engineering and had later got a position at the state, owned weapon factory in his hometown. It delivered technical equipment to the marine. Mohammed had therefore undergone a detailed security control.

When the fighting in Valonia spread to neighbouring areas, the factory was closed down and the production moved to a safer place somewhere else in the country. However, Mohammed had stayed in his hometown. The town was soon after occupied by insurgent ("rebel") forces. They proclaimed that many of the inhabitants of the town had collaborated with the Government in the oppression of certain ethnical and religious groups in the country. It was therefore necessary to exterminate the corrupt and dangerous elements of the population. Everybody who had been employed at the weapon factory were ordered to report to the insurgent party. Within a couple of days several thousands of persons were killed in sporadic fighting in the area, or they were summary executed. An unknown number of persons were deported to prison camps in other parts of the country, amongst other Mohammed's close family and most of his relatives. Mohammed was later informed that the truck transporting his family had been blown up by an anti tank mine.

When the rebels seized the town, Mohammed had been able to hide in the house of a friend who had not worked for the Government. Mohammed feared that the factory's list of employers and the security control list had not been destroyed. After two months, he was smuggled out of the country by a government friendly organisation. He stayed briefly in a neighbouring country, where he had been provided with the necessary travel documents.

Mohammed asserted that he had sent the travel documents back to the organisation that had assisted him, after he had arrived in Norway - just as he had been told. The documents were apparantly needed to assist others. During the interview he refused to reveal the travel-route "out of consideration for other persons in need of asylum".

Mohammed stated that after his arrival in Norway he had learned much more about the gross violations of human rights committed by the Government of Valonia. Thus, if he was returned to Valonia, and managed to avoid the rebels, he would most likely be forced to produce weapons that would be used against innocent people contrary to his beliefs. Given his age, he could even be drafted and forced to fight in a war which he considered to be cruel and pointless.

Question I A:
Assess the merits of the case for refugee status under the 1951 Refugee Convention.

The Norwegian immigration authorities (UDI) rejected Mohammed's application for asylum 15 January 1998, on the ground that the story presented was not credible. It was stated that the authorities attached particular weight to the fact that Mohammed had destroyed his passport and refused to reveal his travel route to Norwegian authorities for no good reason. It was also stated that "the UDI can not rule out the possibility that the applicant is in fact coming from another country in the same region". Mohammed appealed to the Ministry of Justice.

Two, months later Ines Khan arrived in Norway and applied for asylum. In the asylum interview Ines claimed to be 16 years old and the niece of Mohammed. After being separated from her own family nearby the capital of Valonia, where they had been living, she had miraculously managed to escape the rebel controlled area. Later she was informed by a friend that all of her family members had probably been killed by the rebels. She already knew that Mohammed had fled the country and was staying in Norway. She managed to contact Mohammed through a Non Governmental Organisation. Mohammed used his contacts to arrange for her to come to Norway. In the official report from the asylum interview it was noted that Ines appeared to be entirely credible.

Ines claims to be protected against return by the Convention on the Rights of the Child. She refers to articles 3, 22 and 37(a). The fighting in Valonia is still going on and has even escalated in most parts of the country, although the Government controlled capital has not come under attack and remains relatively safe. However, the situation for young women in the city is rather precarious. Reliable reports have indicated widespread abuses committed by governmental troops, including several cases of forced prostitution.

Question I B:
Assess the merits of the case for protection under the Convention on the Rights of the Child, on the basis of all the relevant facts stated above. If you think that additional information would be required, please clarify why such information could be vital from a legal point of view.

Question I C:
Can Ines' case affect the assessment of Mohammed's appeal?

Part 11. Theory.
In this part you shall choose either question 2 or 3.

Question 2:
Discuss the concepts of "agents of persecution" and "internal flight alternative" in international law.

Question 3:
Discuss the limitations of the contemporary refugee regime with regard to
international burden sharing.

Vår 1997
Instructions: You shall answer both A and B. Under A you shall answer both questions. Under B you shall choose either 3a or 3b.

A . Case of Franco Milosevic.
Franco Milosevic was borne 1957 and grew up in the city of Prijedor in Bosnia-Herzegovina of the former Yugoslavia. In 1987 he got employed as a local bus driver. In a census from 1989, people had been asked to identify themselves as "Croat", "Muslim" "Serb" or "other". Although his family background was somewhat mixed in that respect, he registered himself as a "Serb".

When Bosnia-Herzegovina claimed its independence, a war broke out in 1992. The independence, the international borders of the new country and the government in Sarajevo were recognised by the United Nations. However, many Bosnian Serbs wanted Bosnia-Herzegovina to unite with Serbia. A Serb de facto government was established in Pale. This meant civil war in Bosnia.

Prijedor was soon to be controlled by the Bosnian Serb militia, with support from the Serb-dominated army of the former Yugoslavia. The operations of the latter were directed from Belgrade, where the move towards independence in Bosnia-Herzegovina had been strongly condemned. A state of emergency was declared in Prijedor. The powers of the elected local government were suspended and the police had a new leadership.

During the summer of 1992 the bus company in Prijedor got a new director. All employees with a non-Serb identity were sacked. The rest were given army-like jackets and instructed to follow orders without asking questions. One night Franco was called to drive the bus to a place where the police, armed militiamen and more than one hundred Muslim citizens were waiting. They had apparently being arrested by the police. He recognised some friends from a local club among the arrested persons, he also knew two of the local policemen. Some thirty Muslims and nearly as many armed militiamen entered the bus. Franco was told to drive to a deserted place in the forest outside of Prijedor. He was then ordered to wait in the bus when the prisoners were taken away and shot dead. Before he was allowed to drive home in the morning, the commander thanked Franco for his assistance and advised Franco to remain silent about what had happened. For several nights Franco could not sleep.

One week later Franco was ordered to drive his bus alone to another place and wait. When nobody showed up, he decided to leave the bus and get away. He came to Croatia two months later, where he bought a false passport and visa to Norway, indicating that he was a Muslim from Prijedor. The policy of "ethnic cleansing" was already well-known, and rumours indicated possible genocide in places like Prijedor. He arrived in Norway and applied for asylum in July 1993.

Since Norway had a scheme of collective protection for persons from Bosnia, his case for asylum was suspended. When he applied for permanent residence in Norway after three years with a temporary permit, it was discovered that his passport was false. An ordinary asylum interview took place in January 1997, where he told his story. He claimed fear of being persecuted if returned to Bosnia-Herzegovina. Furthermore, he argued that the danger originated from different sources, including unfair punishment by the Bosnian state for complicity to genocide. It was also the risk of assassination or ill-treatment by non-state actors such as relatives of Muslim victims from Prijedor and possibly from Serb agents. He pointed to the fact that human rights groups had reported that several officials and policemen from Prijedor had been attacked and killed by unknown persons at different places in Bosnia-Herzegovina during the last months, when they had been on visit to other cities in the region. The government in Pale had on their part declared that any person who had deserted from Serb military service in the period of 1992-1996 was liable to punishment by a military court.
The Norwegian Immigration Directorate rejected his application for permanent residence, because his temporary permits had been based on false information (that he was a Muslim). With regard to the application for asylum, it was stated in the decision that he could not be considered a refugee since he had not been persecuted by the government in his home country and had no record of political activity.

Franco Milosevic complained to the Norwegian Ministry of Justice with regard to the application for refugee status and asylum.

1. Is Franko a refugee based on the above facts? Discuss relevant issues relating to art. 1 of the 1951 Geneva Convention.

2. With particular regard to non-state persecution: Is Franco protected by the European Convention on Human Rights against return?

B. Theory.
3a.Discuss major changes in the scope and function of the international refugee regime and why these changes have taken place.
3b. The 1951 Convention was promulgated almost fifty years ago: Is it still relevant?

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