Krigsförbrytare på flykt - Exklusionsbestämmelserna i svensk migrationsrätt och dess tillämpning hos Migrationsverket och Migrationsdomstolarna
Sammanfattning: This thesis starts off in the human right to seek asylum and the recognized right to international protection for refugees. It examines the exclusion clauses, the exception that can exclude asylum claimants from refugee protection. The protective measures guaranteed by the Refugee Convention are forfeited if there are serious reasons for considering that the claimant has committed crime against peace, a war crime, crime against humanity, or other serious crimes in the country of origin. Alleged perpetrators of international crimes coming to Sweden is a problem of growing proportions due to the increasing number of asylum seekers during the last couple of years. Even though the vast majority of those refugees who flee their homes do so to escape war and persecution, it is now known that also perpetrators of international crimes come to Sweden. This has resulted in a growing pressure on the Migration Agency, The War Crimes Commission and the Swedish Security Service to deploy more resources to identify war criminals. Focus is on the intersection between refugee law, international criminal law and the human rights instruments and how they correlate with exclusion of asylum seekers. The aim of this thesis is to investigate how the exclusion clauses in Chapter 4, Section 2, (b) and (c) in the Swedish Aliens Act are applied in Swedish refugee law. Furthermore, the paper questions whether the purpose behind the exclusion clauses is fulfilled. Through the traditional legal method, the paper studies the regulation of exclusion and its relationship to the practical implementation at the Migration Agency and the Migration Courts. The analysis of this paper highlights that the rationale of the exclusion clauses is to ensure that refugee protection does not include those who are deemed undeserving and that the perpetrators will be brought to justice. In cases where the Migration Agency identifies a suspected war criminal and makes a decision to expel the claimant, it is often impossible to send the person back, due to the principle of non-refoulement. From the understandings drawn from this legal assessment, it is therefore concluded that this principle is more important than the ambition to exclude war criminals. The Migration Agency and the Migration Courts seem to apply the exclusion clauses in accordance with their wording. However, the implementation results in alleged war criminals caught in a legal limbo since they neither can get refugee protection, nor get expelled. Lastly, it is recommended that more suspected war criminals be brought before national criminal prosecution in Sweden. That would decrease the risk of any individual being punished for alleged crimes without a fair trial. Moreover, it would provide an opportunity for redress to the victims of war crimes.
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