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Resisting Criminal Organizations: Reconceptualizing the “Political” in International Refugee Law

  • Amar Khoday

Assistant Professor, Faculty of Law, University of Manitoba. The article is partly based on his DCL thesis completed at McGill University’s Faculty of Law and supervised by Dr. Frédéric Mégret. The thesis was completed with the generous financial assistance of a Social Sciences and Humanities Research Council doctoral fellowship and the O’Brien Fellowship in Human Rights and Legal Pluralism. The author thanks the Legal Research Institute at the University of Manitoba for providing research funding, Steven Falkingham for providing research assistance on this article, and Dr. Umut Özsu, Yassir Alnaji, Kamala Sundararajan, and JiHyun Youn for their helpful reviews.

Citation: (2016) 60:3 McGill LJ 461

Référence : (2016) 60:3 RD McGill 461

Cover of Volume 61, Number 3, March 2016, pp. 461-719, McGill Law Journal

Article body

Political opinion should be understood in the broad sense, to incorporate any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.[1]

United Nations High Commissioner for Refugees

The [Refugee Convention] was intended to operate in a wider world. It was adopted to address the realities of “political crimes” in societies quite different from our own.[2]

Justice Michael Kirby, High Court of Australia

Introduction

There is a long and established history[3] of individuals and communities[4] engaging in various forms of resistance[5] with the aim of confronting dominant or hegemonic[6] power.[7] In numerous instances, states—and the authority they wield—often serve as the main source of oppression against which resistance is mounted.[8] Yet, not all power exerted and imposed within a society resides in the authority of the state or is perpetrated by state actors. As political scientist and resistance scholar Gene Sharp asserts, “[a]t times the existing informal and noninstitutionalized power capacities and networks may modify, rival, or even surpass the actual power capacities of the official power structure.”[9] Power is also situated within and is exercised in numerous social contexts by non-state actors—including within families,[10] social groups and communities,[11] work contexts,[12] and other social spaces.[13] The state in such circumstances is not necessarily directly involved.[14] Within such varied social contexts, power may be deployed oppressively and through the use or threat of force. A nuanced understanding of resistance must account for power that is situated in social environments and institutions outside of, and unaffiliated with, the state. Accordingly, in this article, I define resistance to include individual and/or collective acts that challenge the dominant or hegemonic power and authority of another individual, group, and/or entity—regardless of whether such authority is rooted in, or affiliated with, state power.[15]

Working from this recognition of non-state actors holding power, this article looks at the notion of resistance toward particular types of non-state oppression perpetrated by wealthy and well-armed criminal organizations and gangs. Such criminal organizations exercise considerable power in several countries. They impose their own unofficial norms and rules on those whom they control.[16] Annette Idler and James Forest assert that “[n]on-state actors—violent or otherwise—who have power over a local populace often play by a different set of rules than the formal governments of nation-states. Trust is established not by a legal system or formal contract between a leader and those governed, but by informal systems of traditional customs and moral codes.”[17] In using the term “criminal organizations”, I am not referring to organizations and groups with explicit aims or aspirations to overthrow the state or government in a particular country or to create an independent state. Such organizations are increasingly referred to as terrorist organizations—particularly where they employ violence—and, as such, could be viewed as a type of criminal organization.[18] In this article, my focus is on criminal organizations that have as their principal objectives the continuation of their unlawful business practices but which are not aimed at overthrowing a government or assuming the formal reins of power.[19]

The dominant power and oppression of such criminal organizations do not go unopposed. While governments confront such power, private citizens have also done so through various means: the use of force;[20] refusal to be forcibly conscripted;[21] rebuffing demands to carry out certain commands;[22] or by reporting such organizations’ activities to the authorities.[23] Predictably, the story does not always end well for resisters. They are often subjected to or threatened with retribution including physical harm or death. Some flee and seek protection in a third party state and seek refugee status under the 1951 Convention Relating to the Status of Refugees[24] and/or the 1967 Protocol Relating to the Status of Refugees.[25] Resisters of criminal organizations, however, have not met with tremendous success in securing refugee status.[26]

In order to qualify for refugee status under article 1A(2) of the Refugee Convention, an individual must demonstrate, among other criteria, that they have a “well-founded fear” of persecution “for reasons of race, religion, nationality, membership in a particular social group or political opinion,” and are unwilling or unable to return to their country of nationality or place of last habitual residence on account of such fear.[27] Many resisters may seek to obtain refugee status by asserting that they have a well-founded fear of persecution based on their political opinion—which may be imputed from their actions[28]—or membership in a particular social group.[29] With respect to proving an asylum claim based on political opinion, a resister must show that the persecutor seeks to persecute her because of her political opinion.[30]

Also relevant to those who have committed criminal acts as part of their resistance, article 1F(b) excludes individuals about whom there are serious reasons to consider have committed “serious non-political crime[s].”[31] By implication, the phrasing permits those who have engaged in political crimes to avail themselves of the protections of the Refugee Convention, assuming all other requirements have been met and no other exclusion clauses apply.[32]

In law, the interpretation of a word or distinct phrase can have a substantial impact on whether an individual may successfully assert her legal rights[33] and/or access certain remedies or benefits.[34] An important aspect to many claims by resisters seeking refugee status on the basis of a political opinion is the interpretation of the term “political” as it modifies the words “opinion” and “crime” in articles 1A(2) and 1F(b) respectively. A court or tribunal’s conceptualization or interpretation of “political” in the context of these provisions can affect the lives of asylum seekers in profound ways. As I shall discuss in this article, such interpretations of the term “political” are particularly relevant to those opposing powerful criminal organizations.

Constructing definitions for these and other terms in the Refugee Convention has been left to institutions of contracting states—typically a state’s legislature, courts, tribunals, and officials. There is of course a role for international and regional organizations or agencies to play in the interpretation process.[35] At the international level, there is the United Nations High Commissioner for Refugees (UNHCR). However, while the UNHCR has a supervisory role with respect to the application of the Refugee Convention, pursuant to article 35, its interpretations are by no means binding[36] (though they have been accepted as highly persuasive in some jurisdictions[37]). In the absence of a centralized international institution (e.g., a court, tribunal, or committee) that is properly constituted to adjudicate and resolve differences amongst state interpretations of the key terms of the Convention, domestic officials, courts, and tribunals have the primary task of interpreting its terms.[38]

In the case of individuals resisting the power of criminal organizations, a number of courts and tribunals have concluded that persecution of resisters by such organizations is not on account of the resisters’ political opinion. In many cases, resisters’ opinions are not seen as “political” but rather concern opposition to criminal conduct. While refugee law jurisprudence recognizes that non-state actors may be considered agents of persecution, there has generally been some connection between such persecutors and the state, even if such a connection is antagonistic and adversarial.[39] In some cases, criminal activity permeates state action.[40] Absent such connections, criminal activity and political power are viewed as almost mutually exclusive.[41]

In this article, I argue that what constitutes the term “political” within the context of articles 1A(2) and 1F(b) of the Refugee Convention needs to account for the substantial power held by criminal organizations within particular societies, and that challenges to their power can be considered “political” in their own right.[42] A broader interpretation is justified when accounting for the human rights purpose underlying the Convention, contextual support, as well as textual silence (given that the Convention does not specifically forbid a broader interpretation).

This article is divided into four parts. Drawing from the Vienna Convention on the Law of Treaties,[43] Part I examines the text, context, and purpose of the Refugee Convention. Specifically, I examine the text of articles 1A(2) and 1F(b) to determine whether there are any textual or contextual limitations to a broader interpretation of the term “political”. I then proceed to examine whether a broader interpretation of “political” is supported by the purpose(s) of the Refugee Convention. In recent years, when engaging in legal or statutory interpretation, the Supreme Court of Canada has also explicitly turned to three broad categories for analytical assistance: text, context, and purpose. Where human rights legislation is being interpreted, there is typically a broad and purposive interpretation given. However, a broad and purposive interpretation will not supersede textual limitations supported by contextual sources—including legislative history as well as domestic and foreign jurisprudence interpreting the relevant legal terms in question.[44] As will be argued below, the textual silence and broad purpose of the Refugee Convention support a generous interpretation of “political”. However, the contextual evidence is more mixed and will be discussed in two of the three remaining parts of the article.

Parts II and III discuss some of the current interpretations of what is considered “political” with respect to the terms “political opinion” and “political crimes” within the Refugee Convention.[45] As I illustrate in Part II, the narrower interpretations of “political opinion” or “political crimes” require some connection between the object or target of the opinion or crime and the state. This needed connection to the state is contrasted with other interpretations, discussed in Part III, which take a much broader view of the term “political” and focus on the exercise of power, regardless of whether it is the state exercising it. As such, in connection with articles 1A(2) and 1F(b), what is “political” may also relate to opinions concerning, or crimes that are directed at, non-state actors, groups, or organizations that hold and exercise power within a given society.

In the fourth and final part, I examine the growing power exercised by certain criminal organizations that engage in dominant and oppressive power, namely drug cartels and youth gangs. Their control is increasingly all-encompassing in certain areas of the countries in which they are situated. Given this power, I argue that resistance against such criminal organizations should be given recognition under the Convention as political acts that serve as a manifestation of a political opinion and/or a political crime as the case may be.

I. Text, Context, and Purpose

How does one undertake the process of interpreting the provisions of an international treaty? Typically, state and international institutions rely on the Vienna Convention on the Law of Treaties for such guidance.[46] Article 31 provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”[47] The Vienna Convention states that the context is comprised of the preamble and annexes to a treaty.[48] The Vienna Convention also provides that certain other materials together with context shall be taken into account when interpreting treaties. They include: “(a) [a]ny subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) [a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; [and] (c) [a]ny relevant rules of international law applicable in the relations between the parties.”[49] Lastly, the Vienna Convention allows for recourse to

supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) [l]eaves the meaning ambiguous or obscure; or (b) [l]eads to a result which is manifestly absurd or unreasonable.[50]

Drawing from the Vienna Convention, Hathaway and Foster emphasize that a key component to interpreting the Refugee Convention is that it must be undertaken in good faith as provided for in article 31(1). Rooted in their readings of International Court of Justice decisions, Hathaway and Foster argue that a good faith interpretation “requires an effort to ensure that the treaty can continue to function within its present social reality and contemporary legal context.”[51] It also requires attention toward ensuring the Refugee Convention’s effectiveness.[52] Such considerations demand, following the International Law Commission, that where a treaty is open to two interpretations, one of which enables the “appropriate effects, good faith, and the objects and purposes of the treaty” and the other which does not, the former should be chosen.[53]

Given the importance of the Refugee Convention as an international human rights instrument, some jurists have also argued for a purposive and “living instrument” approach to its interpretation.[54] For instance, Lord Bingham of the House of Lords wrote: “It is ... plain that the convention must be seen as a living instrument in the sense that while its meaning does not change over time its application will.”[55] He then quoted Lord Sedley who asserted that unless the Convention “is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism.”[56]

In arguing for a broader definition of the word “political” as it appears in article 1 of the Refugee Convention, and in light of the foregoing, I shall briefly examine the text, context, and purpose of the Refugee Convention. With respect to the text, it is worth noting that neither article 1A(2) nor article 1F(b) (nor surrounding provisions) provide any explicit definitions for the terms “political”, “political opinion”, or “serious non-political crimes”. The text itself is silent. Drawing from this silence, one can plausibly argue that the terms “political opinion” or “political crimes” do not, by textual necessity, have to be tied solely to the policies or activities of state actors and/or institutions.[57] Indeed, as I discuss in Part III of this article, the UNHCR has advanced a more robust interpretation of “political opinion”.

A more generous interpretation of the term “political” that connects political crimes committed against, or political opinions held about, non-state actors or entities by the resister coheres with the broad purposes of the Refugee Convention as set out in its preamble (the context). Such purposes include the protection of human rights in the face of a well-founded fear of persecution. Evidence of this connection to human rights can be found in the first clause of the preamble, which states: “the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.”[58] This commitment to human rights protections was echoed in part in Canada (Attorney General) v. Ward, where the Supreme Court of Canada asserted that underlying the Refugee Convention “is the international community’s commitment to the assurance of basic human rights without discrimination,”[59] particularly where there is a lack of state protection one should be able to expect from one’s own state.[60] When interpreting the notion of “membership in a particular social group”—a separate ground within the Refugee Convention—the Supreme Court explained that the meaning assigned to this ground “should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.”[61] This broad human rights-centric approach should apply equally to defining political opinions or political crimes within the framework of the Convention. In a “starred” precedential decision by the United Kingdom’s Immigration Appeals Tribunal (IAT), the IAT asserted that, with respect to an interpretation of political opinion, an interpretation “must not narrow the definition of political beyond recognition nor rely on intricate distinctions of definition that might deny political opinion status in contexts where a broad usage would accord it.”[62]

The Vienna Convention, as mentioned above, permits the consultation of preparatory work (travaux preparatoires) to a treaty. There appears to be little direct discussion about the definition of the term “political” in the preparatory work to the Refugee Convention. With respect to “political opinion”, there was consensus that political opinions were not limited to opinions by members of a political elite (e.g., diplomats who have fallen into disgrace with their own government or party members whose political party had been outlawed by the governing party), but also included members of the general public when, for example, they were fleeing a revolution.[63] There is little to suggest any explicit limitations to the term “political” with respect to “political crimes” such that the targets had to be state actors or those vying to be state actors.

An analysis of the text, context, and purpose of the Refugee Convention suggests that a more expansive interpretation of the term “political” could be sustained. There is nothing in the Refugee Convention that explicitly limits a broader interpretation of the term “political”. Furthermore, given the broad human rights-focused purpose of the Convention, a more generous interpretation might be supported. However, given that there is a lack of a centralized international tribunal, court, or committee to provide authoritative pronouncements on such definitional issues, one cannot ignore any relevant legislation as well as jurisprudence of courts and tribunals of various contracting states to the Refugee Convention.[64] I turn to these sources next.

II. Assessing the State of the “Political”—Narrow Frames

A. Political Opinions

A substantial number of courts and refugee tribunals have dealt with cases relating to persecution on the basis of “political opinion” in the context of the Refugee Convention.[65] As noted above, there is no definition of political opinion located in the Refugee Convention itself. Despite the lack of an established definition, the Supreme Court of Canada has nevertheless adopted an explicit definition of political opinion that emphasizes the connection between the state and the term “political”.[66] While other jurisdictions have not specifically defined the meaning of the term “political”, there is a considerable and perhaps unsurprising emphasis in court and tribunal decisions that the concept of political opinion is, at the very least, concerned with express or imputed opinions about state or government matters. The Australian Refugee Review Tribunal, for example, states that “the phrase ‘political opinion’ includes instances where the Applicant holds political opinions not tolerated by the authorities, which are critical of their policies and/or methods.”[67] The Tribunal concluded that a “‘[p]olitical opinion’ within the terms of the Convention includes the perception by the authorities that an applicant has political opinions hostile to those of the government of their nationality.”[68] Within the narrower parameters of understanding political opinions as opinions relating to the state, courts have been willing to adopt a broad definition as to what constitutes the “state” for the purpose of interpreting political opinions. Australian and United States courts, for example, have explained that political opinions do not have to refer to or solely fit within the sphere of party politics as understood in parliamentary democracies, but can relate to the actions of instrumentalities or institutions of the state, including its police and armed forces.[69]

Yet, is it possible for legal interpretations of political opinions to contemplate opinions (or acts from which political opinions may be imputed) about the policies and/or conduct of non-state actors, groups, or organizations that exercise substantial power within a given society? Court and tribunal decisions suggest that while some recognition is given to this possibility, any developments in this direction are still largely restrained and tentative. Fundamentally, the jurisprudence suggests that where opposition to non-state actors is considered to be a manifestation of a political opinion, it is where the non-state actor or entity seeks to overthrow or challenge the government.[70] As I shall explain below, and drawing from Canadian jurisprudence as an illustration, the spectre of the state still looms large when contemplating the meaning of the term “political opinion”.

The Supreme Court of Canada adopted Guy S. Goodwin-Gill’s definition of a “political opinion” as “any opinion on any matter in which the machinery of state, government, and policy may be engaged.”[71] In adopting this formulation, the Court rejected a narrower definition constructed by Atle Grahl-Madsen, who characterized political opinions as those “contrary to or critical of the policies of the government or ruling party.”[72] In the Court’s view, the Goodwin-Gill definition offered more protection, particularly to persons threatened by non-state groups not allied to and perhaps even opposed to the government because of their real or perceived political perspectives.[73]

Even accounting for the broad nature of this definition, the presence of the state and its association with what is “political” still persists. While the Supreme Court of Canada’s chosen definition does not require that a political opinion concern the state directly, it must still be on a matter in which the state, government, and policy may be engaged. Thus a political opinion can be directed at the actions or policies of a non-state entity provided it is at least on a matter in which the state may be engaged. The facts of the Ward case illustrate this state-centric approach even where the opinion directly relates to the conduct of non-state actors.

In Ward, the asylum applicant (a national of both Britain and Ireland) was a former member of the Irish National Liberation Army (INLA).[74] The INLA was a paramilitary group that was dedicated to the reunification of Northern Ireland with the Republic of Ireland.[75] Ward voluntarily joined the INLA and was assigned soon after to guard two hostages kidnapped by the group.[76] After being ordered to execute these hostages, however, Ward disobeyed the orders as an act of conscience and furthermore helped these hostages to escape.[77] After the police informed an INLA operative that one of its members helped the hostages escape, the group suspected Ward of being this member.[78] Subsequent to torturing him, the INLA “prosecuted” Ward in a “court proceeding” and finally sentenced him to death.[79] Ward, however, managed to escape and sought police protection.[80] The government then prosecuted Ward for his role in the kidnapping of the two British hostages while his wife and children were themselves taken hostage by the INLA to ensure that Ward did not reveal information.[81] After being released, Ward fled to Canada fearing persecution by the INLA.[82]

The Supreme Court of Canada held that Ward may be eligible for refugee status on the basis of a well-founded fear of persecution in connection with his political opinion.[83] It determined that Ireland, by its own acknowledgement, lacked the capability to protect Ward.[84] The case was to be remanded in order to determine whether Britain was capable of providing state protection.[85] In recognizing his potential eligibility for refugee status, the Court observed that from his act of helping the hostages to escape, “a political opinion related to the proper limits to means used for the achievement of political change can be imputed.”[86] While Ward’s political opinion was directly related to the INLA’s activities and policies in seeking such political change, it was still inexorably connected to matters in which both Great Britain and the Republic of Ireland were engaged.[87] Although the Court never specifically identified what these matters were, they would reasonably include the matter of Northern Ireland’s secession from Britain and reunification with the Republic of Ireland[88] as well as matters of national security and public safety posed by the actions of the INLA and other groups like the Provisional Irish Republican Army.

In maintaining a conceptual nexus between the state and what is “political”, the Ward Court sought to emphasize that “[n]ot just any dissent to any organization will unlock the gates to Canadian asylum; the disagreement has to be rooted in a political conviction.”[89] The Court articulated that this emphasis on political conviction as applied in the Ward case “would preclude a former Mafia member, for example, from invoking it as precedent.”[90] By using the Mafia metaphor, it signals the Court’s refusal to accord opposition to criminal entities that are presumptively unconnected to the state (or the exercise of state power) as falling within the parameters of the “political”.[91] Lower courts in Canada following Ward have similarly held that opposition to criminality or criminal organizations does not constitute a political opinion.[92] In Vassiliev v. Canada (Minister of Citizenship and Immigration), the Federal Court observed: “Refusing to participate in criminal activity, while laudable, has often been found not to be an expression of political opinion.”[93] The judge posited that the Federal Court’s jurisprudence has “found that opposition to criminal activity per se is not political expression.”[94] The court proceeded to indicate that an example of this opposition included informing the authorities about the activities of drug traffickers.[95]

Judicial resistance to recognizing an asylum seeker’s opposition to a criminal organization as an expression of a political opinion finds voice in Yoli v. Canada (Minister of Citizenship and Immigration).[96] In Yoli, an asylum seeker was targeted by a youth gang for leaving the outfit because of his opposition and refusal to take part in their criminal conduct, which included murder, extortion, and drug dealing. While the Immigration and Refugee Board (IRB) concluded that the group Yoli feared was a criminal gang, it believed there was no persuasive evidence that Yoli’s opposition to the gang’s criminal activities was, according to the Ward definition, a “matter in which the machinery of the state, government and policy may be engaged.”[97] The IRB also asserted that although the criminal gang in question may have been used by some political parties as part of a “rent-a-mob” strategy, there was no evidence that the gang and the state were so intertwined such that a failure to cooperate with the gang implied “opposition to the state apparatus.”[98] This decision was affirmed by the Federal Court as being reasonable. The court reiterated the prevailing Canadian jurisprudential understanding that “[r]efusing to participate in criminal activity, witnessing and/or reporting a crime have generally been found by this Court not to be in and of themselves expressions of political opinion attracting Convention refugee protection.”[99]

This prevailing attitude was also applied in a case of resistance against a powerful drug cartel in Colombia. In Suarez v. Canada (Minister of Citizenship and Immigration), the asylum seeker had informed on the cartel and subsequently experienced retaliation.[100] The IRB concluded, and the Federal Court agreed, that Suarez’s fear was not on account of his perceived political opinion.[101] The court stated that there “was no political content or motivation to his action, comparable to that which existed in the Ward case.”[102] It is worth noting that Ward’s opposition to killing innocent persons (criminal acts) was predicated on a sense of moral conscience[103] while Suarez’s act of informing on the cartel was (according to the Minister) based, in part, on his moral and ethical opposition to drug cartel activity (activity which Suarez was asked to support). Both the INLA and the cartel exercised power but the former was clearly motivated by a traditional political objective, namely, one that is connected to overthrowing the state. As I demonstrate later in this article, drug cartels and youth gangs are not apolitical actors and in many ways are recognized as de facto political actors.

Not all opposition to criminality, however, is seen as apolitical. Resisting criminality may be construed as an act of political opposition where there is a strong nexus between non-state criminal actors and the state, including its agencies and actors. As such, courts and tribunals have recognized that opposition to criminal activity may be considered a manifestation of a political opinion. For instance, in Berrueta v. Canada (Minister of Citizenship and Immigration), two organized crime figures were significantly tied to a local governor (one served as the secretary to the governor) and controlled the police. Both individuals were viewed as being able to act with impunity.[104] The question that the IRB failed to determine was whether, in light of this jurisprudence, opposition to the two criminals was in fact opposition to the government, and the court remanded the case back to the IRB to make a determination.

Thus while violence or threats of violence in response to opposition to state actors engaged in criminal activity (e.g., whistleblowing on the corrupt activities of state actors) will be encompassed within the rubric of a political opinion, the same reaction garnered by whistleblowing on criminals with no connection to the state may not. This exclusion is regardless of the extent of the actual power such criminal actors may exercise. Accordingly, a non-state entity’s connection to the state is a necessary piece of the political opinion analysis (whether because it is allied to the state or in opposition and seeking to overthrow it).[105]

In the next section, I examine whether this connection to the state is as significant within the framework of interpreting the notion of “political crimes” based in article 1F(b) of the Refugee Convention.

B. Political Crimes

The nexus between the state and what is deemed “political” has been just as, if not more, pronounced in connection with “political crimes”, under article 1F(b) of the Refugee Convention and under extradition law (where the political crimes doctrine first originated), as it has been in the case of political opinions under article 1A(2) of the Convention. For instance, as an express statement of this connection within the extradition context, the Supreme Court of India proclaims that “politics are about Government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy.”[106] Similarly, the British House of Lords has asserted that a crime is political in relation to article 1F(b) if, among other factors, “it is committed for a political purpose, that is to say, with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy.”[107] As part of the overall evaluation, the majority posited that an examination must be made as to whether the targets were government or military targets on the one hand or civilian on the other.[108]

With respect to the conceptual nexus between the “political” and the state in the context of political crimes, the connection dates back to its earliest inception. Throughout the history of the political crimes doctrine within both refugee law and extradition law, the concept of political crimes has been strongly tied to protecting individuals opposing their own governments.[109] Of course, it is not just any government. As one United States federal court posited, the political crimes doctrine was specifically designed “to protect the right of citizens to rebel against unjust or oppressive government.”[110]

As further evidence of the connection, courts have identified certain crimes as “pure” political offences—specifically treason, sedition, and espionage.[111] All three crimes target the state or state actors. Few, if any, would dispute that, as per a traditional understanding, treason, sedition, and espionage are political in nature given their relation to the state or state actors as the main targets of these acts. Where the greatest amount of litigation has transpired is with respect to what are called “relative political crimes”. These involve common law crimes, such as murder, which are committed with a political objective in mind. In cases of relative political crimes, whether in the context of extradition law (the legal context where it first originated) or with respect to article 1F(b) under the Refugee Convention,[112] courts have only accepted the application of the political crimes doctrine where the factual circumstances relate to where the government or state actors were being attacked or those challenging the state were the target of the attack.[113]

In one of the first cases dealing with the political crimes doctrine in the extradition context, Re Castioni, a British court denied Switzerland’s request for the extradition of a man who was part of an attack on the local government’s headquarters.[114] Those involved in the attack were angry that local officials denied their request for a vote to modify the local government’s constitution.[115] Castioni and others subsequently launched an armed attack on government buildings which resulted in the killing of a local official.[116] In deciding that the request for extradition should be denied, the court held that Castioni’s killing of the official was incidental to and formed part of political disturbances and qualified as a political crime.[117]

A subsequent British extradition case decided within three years of Castioni also established the necessary connection between “political crimes” and the state. In Re Meunier, an individual caused two explosions—one at a café in Paris and the second at a French military barracks.[118] He fled to England and France sought his extradition. The court held that the crimes were clearly non-political. It observed that in order to constitute a political crime, “there must be two or more parties in the State, each seeking to impose the Government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not.”[119] The court identified Meunier as an anarchist whose main target was not the state but the general body of civilians.[120]

Drawing from the facts of Castioni and other extradition and refugee cases, violent attacks on government (including state actors and institutions) by resisters are eligible to be considered political crimes.[121] Indeed, to target an authoritarian government or military has been deemed to carry a certain exalted meaning. As one panel of the Immigration and Refugee Board of Canada asserted, the “freedom fighter, or the resistance fighter, attempts to achieve his aim by going after military and government targets.”[122] Conversely, crimes directed against non-state actors are generally deemed to fall outside of the political crimes exception, and thus result in the denial of refugee status or the granting of extradition.[123] Attacks on non-state actors are not considered political but mere common law crimes, and are sometimes characterized by courts as acts of anarchy or terrorism.[124]

There appear to be two discernible exceptions to this rule when the targets are non-state actors. First, where the particular non-state actors are part of an active and violent political uprising against the government and are killed in the process of its suppression, such conduct may be considered a political crime.[125] In Re Ezeta, the government of Salvador sought extradition of an individual who led a revolution that overthrew a former government of Salvador.[126] After overthrowing the government, Ezeta was then faced with having to combat an effort to in turn overthrow his new regime.[127] In the course of doing so he committed or ordered the commission of certain crimes against members of the former regime (now formally non-state actors engaged in the uprising against him and his new government).[128] The court held that Ezeta’s crimes fell within the scope of the political crimes exception.[129]

The second instance is where the political crimes are committed against non-state actors who are closely tied to, but not formal members of, the government. In Re Extradition of Singh, India sought extradition of a Sikh nationalist who engaged in violent actions against the governments of India and Punjab in order to establish a Sikh state.[130] Although the United States district court granted extradition in connection with certain crimes that were deemed to be of a non-political nature, it denied extradition with respect to several others.[131] Of those actions designated to be political crimes, the court held that Singh’s separate attacks on a former elected member of the legislature (an attack which also included killings of his police security detail) and three paramilitaries who were not formal members of the government or agency but connected with and supportive of the government were deemed political crimes.[132] The court notably emphasized that the former legislator was a “well known pro-India figure, who was a known enemy and persecutor of Sikh militants, acting in support of anti-Sikh government actions after he left political office.”[133] While Singh had been involved in crimes against other former state politicians or agents, in those instances there was no evidence of their continued involvement in politics at the time of the crimes or existence of a police escort. As such, extradition was granted for those offences.[134]

What these cases suggest is that where courts may be willing to recognize a violent attack on non-state actors as political crimes, the victims must be persons themselves seeking to overthrow or challenge the state through violence as in Ezeta or have strong ties and involvement with the state as in Extradition of Singh. It is rather unlikely, under current interpretations, that these exceptions would extend to recognizing political crimes against criminal non-state actors who exercise substantial power in a given country. As the discussion below will argue, there are valid reasons why such persons should nevertheless be considered political actors.

Having discussed how courts and tribunals tend to link what is “political” with the state, I shall next argue for an expanded definition of what constitutes the “political” in the context of international refugee jurisprudence.

III. Substance over Form? Power as the Central Feature of the “Political”

Notwithstanding the traditional inclination within refugee and extradition law to define or associate what is “political” with the state or those opposing the state, the notion of what is “political” should not be limited to institutions or actors that hold or seek to hold government power. If politics are in large part about power, the state is not the only source of it in a given society. Political scientist and resistance scholar Gene Sharp describes political power as “the totality of means, influences, and pressures available to determine and implement policies and governance of a society. This especially refers to the institutions of government, the State, and those who oppose them.”[135] Though a great deal of attention is directed in this definition toward the state or those who oppose it, the word “especially” is not equivalent to exclusivity. Sharp also recognizes that politics extend beyond the state. He posits that while the term “politics” includes the activities of the state, it is not restricted to such conduct and processes.[136] Sharp asserts that politics “can include non-State governmental action and bodies” which may encompass “corporate extragovernmental action ... to change social or political practices.”[137] As such, narrowly defining political opinions or crimes as those solely directed at government actors or institutions, or those non-state actors seeking to displace them, fails to account for deeper and more sophisticated understandings of what qualifies as “political”, as well as for the different types of power transactions that can take place in different societies.[138]

What constitutes a political opinion or crime will often be viewed through the juridico-cultural lenses of those making legal determinations. Similarly, what constitutes legitimate political action or resistance will be contingent on the particular lenses through which the actions are perceived. As Zimmermann and Mahler observe, “what may be non-political in the State of refuge may have been perceived as being highly political in the claimant’s State of origin, considering the different political situation there.”[139] In Gomez v. Secretary of State for the Home Department, the UK IAT asserted that “[the] parameters of time and historical place are even more present in relation to the political opinion ground. That the definition of the adjective ‘political’ must always be to some extent malleable flows from the fact that the nature of the power relationships and transactions that compose what is political vary from society to society.”[140] In a similar vein, Justice Kirby, writing at the time as a member of the High Court of Australia and in the context of interpreting the scope of political crimes within article 1F(b), observed:

The Convention, including Art 1F(b), should not be read with an eye focussed solely on the experience of the political processes of Australia or like countries. The Convention was intended to operate in a wider world. It was adopted to address the realities of “political crimes” in societies quite different from our own. What is a “political crime” must be judged, not in the context of the institutions of the typical “country of refuge” but, on the contrary, in the circumstances of the typical country from which applicants for refugee status derive.[141]

For the purposes of interpreting the meaning of the word “political”, a consistent theory of refugee protection should be based on the human rights-centric purposes underlying the Refugee Convention (as mentioned earlier). Through such interpretations, one should ultimately focus on the “political” as being concentrated on the exercise of power and those who use it to regulate the conduct of individuals and of civil society more broadly; such an interpretation would, in turn, have an impact on those individuals’ and civil society groups’ social, economic, cultural, legal, and/or political rights and interests. Certainly, governments continue to be substantial bastions of power that regulate society and should still be recognized as such. However, they do not hold a monopoly over the ways in which power is experienced and used to oppress. Indeed, domestic human rights regimes recognize the power of private actors to discriminate on the basis of various grounds which have an impact on the dignity of individuals. As such, these human rights regimes prohibit private and public abuses of power through discrimination, particularly in the areas of employment, accommodation, and access to services and facilities.[142]

Just as private actors are capable of discriminating, some are also capable of going further and committing persecution. In connection with refugee law, it is rightly understood that mere discrimination on the basis of a Convention ground is not enough to constitute persecution.[143] Yet when discrimination by private actors escalates to the level of persecution, the response of refugee law jurists should not be to apply a limited state-centric notion of what constitutes the “political”. To do so renders many vulnerable to persecution for challenging such power.

Numerous non-state actors exercise considerable power and in ways that are oppressive to civil society in general and vulnerable groups in particular. Such oppression can be exacted through traditional political processes and in a manner that is substantially mediated through the public sphere. For example, citizens can engage in the legitimate political activity of voting, but with the specific goal of depriving discrete minorities of their human rights.[144] It may also involve corporate actors who influence politicians through substantial campaign contributions to pass laws or to act in a manner that is beneficial to their own interests, but detrimental to others. However, there may also be little direct involvement of the state where individuals or communities engage in practices that undermine the rights and interests of other individuals.[145] In other circumstances, an otherwise legitimate corporate entity may engage in actions in foreign states that work to the detriment of local populations.[146] Lastly, there are instances in which non-state actors in the form of criminal organizations exercise substantial power in a given territory, imposing their own form of oppressive political power that rivals the state.

In recent years, leading scholars have increasingly recognized that non-state actors may engage in persecution for reasons connected to the asylum seeker’s political opinion where that opinion does not concern the government or state more broadly, but relates to other dominant and powerful sections of society. For instance, there have been moves toward defining political opinion as constituting those opinions concerning control exercised by a non-state entity. The University of Michigan’s annual Colloquium on Challenges in International Refugee Law recently produced its “Guidelines on Risk for Reasons of Political Opinion.”[147] The Colloquium has defined a “political opinion” as

an opinion about the nature, policies, or practices of a state or of an entity that has the capacity, legitimately or otherwise, to exercise societal power or authority. A relevant non-state entity is one that is institutionalized, formalized, or informally systematized and which is shown by evidence of pattern or practice to exercise de facto societal power or authority.[148]

This definition clearly acknowledges the societal power and authority exercised by non-state entities. A critical question that arises is how the Colloquium defines “entity”. No definition is provided. The Merriam-Webster Dictionary defines it as a being or existence; “something that has separate and distinct existence and objective or conceptual reality”; or “an organization (as a business or governmental unit) that has an identity separate from those of its members.”[149] Or, to employ a more legal definition, an entity is “[l]egally, equal to a person who might owe taxes. A generic term inclusive of person, partnership, organization, or business. An entity can be legally bound. An entity is uniquely identifiable from any other entity.”[150] Although an entity can include a person (which might include individuals), within the context of the Colloquium’s definition, it is largely suggestive of a particular set of collectives, including businesses and organizations.

A broader definition appears to have been incorporated into European Union law as well. Evidence of further recognition of the opposition to non-state actors as constituting expressions of a political opinion may be found in the 2004 and 2011 European Union Qualification Directives on interpreting the Refugee Convention and Protocol.[151] The Directives provide that the concept of political opinion shall include the holding of opinions, thoughts, or beliefs on matters related to “potential actors of persecution mentioned in Article 6 and to their policies or methods.”[152] Article 6 in turn identifies that “actors of persecution or serious harm” include “the state”, as well as “parties or organisations controlling the State or a substantial part of the territory of a state.”[153] Importantly, the Directives include non-state actors as a separate and third category if it can be demonstrated that the state, or parties or organizations controlling the state including international organizations, “are unable or unwilling to provide protection against persecution or serious harm.”[154]

The Directives are significant, as the political opinion must concern matters related to both the “agents of persecution”, including non-state actors, as well as to those agents’ policies and methods. This attention to non-state actors does not, then, inherently, as in the jurisprudence discussed earlier in this article, require that the opinion be related solely to a matter on which the machinery of state, government, and policy may be engaged. In addition, it does not appear that the non-state actor about whom or which the opinion is expressed must be either vying for control or in opposition to the state.

The only apparent limitation placed on the definition of a political opinion about non-state actors is that it must be demonstrable that a state or those controlling it must be unable or unwilling to protect the asylum seeker. This limitation does not alter the meaning of what is a political opinion, but merely restates a recognized minimum requirement of international refugee protection. As the Supreme Court of Canada has posited, international refugee law is intended to protect only where there is a failure of state protection by the individual’s country of nationality.[155] It is well recognized that non-state actors may be agents of persecution in connection with one of the four other grounds—race, religion, nationality, or member of a particular social group. In those cases, what is required is to show the inability or unwillingness of the state to protect. The EU Directive ensures that the political opinion ground not require that there be an added state-related component when asserting persecution for reasons of a political opinion.

The UNHCR has similarly recognized that non-state actors may engage in persecution for reasons of the asylum seeker’s political opinion that are not related to the government but to other sections of society more broadly. In its guidelines on gender-related persecution, the UNHCR articulates a broader definition than the EU Directive, in that “[p]olitical opinion should be understood in the broad sense, to incorporate any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.”[156] This definition largely replicates the Supreme Court of Canada and Goodwin-Gill definition discussed above.[157] Yet the UNHCR injects an additional and crucial component—the role of society in shaping and imposing policies and norms, even if the state is formally opposed to such conduct but otherwise condones or validates such behaviour.[158] Furthermore, the UNHCR Guidelines articulate that a claim of persecution based on one’s political opinion presupposes that

the claimant holds or is assumed to hold opinions not tolerated by the authorities or society, which are critical of their policies, traditions or methods. It also presupposes that such opinions have come or could come to the notice of the authorities or relevant parts of the society, or are attributed by them to the claimant.[159]

The use of the disjunctive term “or” indicates that society itself operates as a source of policy making and certainly as the generator of norms that arise from such policies. For instance, women may be subjected to threats of “honour killings” for failing to abide by or resisting the dictates of those with power within their families, kinships, or clan groups. The role of societal actors in this expanded definition of political opinion also explicitly recognizes that non-state actors may be agents of persecution should they take action to punish perceived violations of society’s unofficial policies or norms.[160] Such understandings of political opinion are consistent with the UNHCR interpretation of this ground as requiring a context-specific analysis reflecting the realities of the “geographical, historical, political, legal, judicial, and socio-cultural context of the country of origin.”[161]

The notion that certain acts perpetrated in opposition to non-state actors could serve as the basis for a political opinion was recognized in a binding precedential 2008 decision by the New Zealand Refugee Status Appeals Authority. In that decision, the applicant successfully claimed that she had a well-founded fear of persecution on the basis of her unilateral decision to terminate her abusive marriage, a decision which had stirred the wrath of her husband, his family, and her own family as well. She was subjected to death threats should she return to Turkey. Regarding the claimant’s decision to terminate her marriage, the Authority concluded the following:

[T]he appellant’s assertion of her right to life and of her right to control her life was a challenge to the collective morality, values, behaviours and codes of the two families and beyond them, of the greater “community” of which they are a part. This challenge to inequality and the structures of power which support it is plainly “political” as that term is used in the Refugee Convention.[162]

The Authority also held that based on country information, the government of Turkey either refuses or is unable to protect women from this type of violence.

Although there are certainly differences between these conceptualizations of what constitutes a political opinion (with the UNHCR definition and the New Zealand case illustrating conceptualizations of political opinion at its broadest reach), they all strongly suggest a series of moves toward realizing a more generous and purposive interpretation of a political opinion. They also suggest that opposition toward non-state entities such as criminal organizations may be viewed as legitimately political and that a well-founded fear of persecution may be connected to political retribution by such entities within a given society.

As noted above, within the Convention, the term “political” is associated not only with “opinions” but with “crimes” too. How should these broader understandings of “political” within the context of “political opinion” relate to “political crimes” as referenced in article 1F(b)? There is nothing in the text of article 1F(b) that indicates that the term “political” should be given a more restrictive meaning. In addition, although the UNHCR formulated a generous interpretation concerning political opinion in the particular context of gender-related persecution (though this definition can have broader applicability), and the EU Directive and the Michigan Colloquium did so more generally, there is no reason not to extend such broader understandings of the “political” to political crimes under article 1F(b). Indeed, non-state actors may persecute individuals with the tolerance or indifference of the state.[163] As such, if individuals engage in conduct that would qualify as a manifestation of a political opinion against oppressive and powerful non-state actors or entities, that same conduct should similarly be considered a political crime for the purposes of article 1F(b).

That the concept of political crimes should also be subject to a broader reading was supported by Justice Gaudron of the High Court of Australia. In writing a concurring opinion in the context of a political crimes decision under the Refugee Convention, Justice Gaudron argued that one ought to “consider a crime to be political if a significant purpose of the act or acts involved is to alter the practices or policies of those who exercise power or political influence in the country in which the crime is committed.”[164] More importantly, Justice Gaudron does not limit those who exercise political power or influence to those within government. She explains that in

some, perhaps many countries, power and political influence are exercised by bodies and organisations that are not organs of government. They may exercise power and influence with the tacit consent of the government concerned. On the other hand, they may do so because the government is unable to assert its own authority. And with increasing globalisation, the organisations or bodies in question are not necessarily confined to those that operate solely within national boundaries.[165]

Drawing from these statements and from the broader points respecting political opinion discussed earlier, the concept of a political crime should be understood and reframed as any act, the primary objective of which is to resist or otherwise challenge those working within the government, state, and/or society who (1) hold and exercise substantial power or (2) influence those who hold and exercise such power. Several objectives may govern the conduct of those challenging such power. They include: (1) depriving those who hold and exercise power from continuing to do so; (2) forcing or pressuring those with power to change policies, legal norms, practices, and/or personnel; or (3) refusing to be subject to the control of those who exercise power.[166] Under this articulation, political crimes are not defined solely by the means and methods employed but also by the primary objectives of those invoking the exception. Furthermore, this articulation recognizes that power is not lodged exclusively within the government but is exercised by non-state actors in substantial ways as well, and, as such, certain non-state actors should be considered legitimate targets of political crimes.

Invoking non-state actors or entities as recognized power holders against whom political crimes may be waged remains a controversial notion. This controversy is perhaps based on two interrelated ideas. First, one often associates political crimes with violent conduct, and the manner in which it has developed in extradition and refugee law indicates that the association is not without some foundation. Second, there is the dichotomy that resisters or freedom fighters are believed to primarily target government actors, while “terrorists” target civilians, that is, non-state targets.[167] This simple dichotomy fails to recognize the serious harm that certain “civilians” or otherwise non-government actors can inflict through their power, which has a substantial impact on the rights and interests of other civilians. Resistance to such power, even though it may seem to target “civilians” in a superficial sense (in the sense of their being notionally non-military or non-state actors), should not be seen as simply apolitical when it is demonstrably and profoundly otherwise. Examples of such non-state power include organized criminal organizations, cartels, and gangs that engage in brutal exercises of non-state oppressive power.[168]

The foregoing discussion indicates that there are competing interpretations of the term “political” in relation to political opinion and political crimes. While the traditional and narrow approach outlined in Part II more closely ties the concept of the “political” to the state, the broader vision enumerated in this Part recognizes other entities or social actors as holding power that one might legitimately characterize as political. The UNHCR, European legislators, and prominent refugee law scholars have supported this broader vision to varying degrees. These moves are not insignificant and register an important shift in shaping a purposive approach to interpreting the Refugee Convention, though the shift is by no means universal.

Building on this discussion, I shall next examine how criminal organizations such as drug cartels and youth gangs may qualify as political actors. The hoped-for consequence is that persons who have a well-founded fear of persecution for resisting such organizations will be able to claim refugee status on the basis of a political opinion. In addition, crimes committed against such actors may also be considered “political”, and as a result, may not be excluded under article 1F(b).

IV. Resisting Criminal Organizations

Drawing from the previous discussion, in this Part, I shall demonstrate that criminal organizations, particularly drug cartels and criminal gangs in Central America, exercise significant power and control in particular countries or portions of them. Such criminal organizations have grown to be exceedingly powerful and pose serious threats to those countries’ civil societies and to their political, legal, economic, and social systems.[169] Because of the expanding power of these organizations, residents in these “semi-autonomous zones controlled by criminal insurgents increasingly recognize the insurgents rather than the hollowed out state as the real source of local power and authority.”[170] I shall argue that resistance to such organizations should be interpreted as “political”. In support of this argument, I draw in part upon the growing body of scholarly literature on drug cartels in Mexico and on youth gangs in other Central American states. With respect to the growing problem of youth gangs in Central America, I also draw on the UNHCR’s work on those fleeing the harms threatened by such groups.

A. Drug Cartels in Mexico

Over the past decade or more,[171] substantial areas of Mexico[172] have been transformed into fiercely contested spaces[173] between wealthy and well-armed drug cartels on one hand[174] and between these cartels and the Mexican government on the other.[175] Although formal power in Mexico is shared between thirty-one subnational jurisdictions (states) and one federal district, numerous large drug-trafficking organizations informally exert de facto control over large parts of the country.[176] Although there were earlier governmental efforts to challenge the cartels, the violence substantially escalated due to then-President Felipe Calderón’s large-scale attempted takedown of the drug cartels beginning in late 2006.[177] This government offensive led to massive violent resistance by these criminal organizations.[178] The repercussions arising from this sanguinary violence have led to thousands of deaths, forced disappearances,[179] and displacement, with many having fled the country to seek asylum elsewhere.[180] In addition, the killing of civilians has not just been perpetrated by the cartels, but also by state military and police actors.[181] Despite attempts by the Mexican federal government to suppress drug-related violence and overall activity, the death toll has nevertheless continued to rise.[182] In some locations, drug cartels have established parallel tax systems where citizens are subjected to perilous circumstances for failing to pay.[183] Thus, in addition to demanding and collecting “taxes”, the cartels impose their own brutal law and enforce it.

With this information as background, in what ways might it be argued that the drug cartels are de facto political actors rather than purely criminal actors seeking economic gain through illicit means? Several scholars have approached the theorization of drug cartels as political actors, each from different angles. For instance, Nils Gilman emphasizes the fact that criminal organizations are non-state entities at the same time that they exercise de facto political power.[184] He contends that though these organizations operate like criminal insurgencies, they are distinct from social revolutionaries in that they do not seek to build or capture institutionalized state power.[185] Rather, the cartels merely desire to maintain their rents and income from the markets they control.[186] Instead of controlling the state directly, such organizations seek to selectively cripple the state so as to establish a private zone of economic autonomy, while continuing to rely on the state to supply vestigial social services. In Gilman’s words, “[t]hese actors thrive in (and indeed try to foster) weak-state environments, and their activities reinforce the conditions of this weakness.”[187]

Gilman posits that by engaging in such activities, these organizations create conflict with the state and become de facto political actors.[188] He asserts that the cartels’ status as political actors is based on three factors. First, they increasingly control large swaths of the global economy and operate prominently in spaces “where the state is hollowed or hollowing out.”[189] Second, such actors employ a significant amount of violence to enforce their will and to resolve their unlawful contractual disputes.[190] Gilman observes that the use of violence brings such political actors into “primal conflict with one of the state’s central sources of legitimacy, namely its monopoly (in principle) over the socially sanctioned use of force, transforming them from merely deviant businessmen into criminal insurgents.”[191] Lastly, in some cases, these new de facto political actors “have begun to emerge as private providers of justice, health care, and infrastructure—that is, precisely the kind of goods that functional states are supposed to provide to their citizens.”[192]

While the relationships between the cartels and various government and state actors in Mexico are violent and antagonistic, some scholars articulate that they nevertheless have closer relationships than one might imagine despite the open antagonism. This position is based on the fact that the cartels purchase the loyalty of many government and law enforcement officials. Corruption is rampant. Those officials who refuse to comply are murdered or otherwise targeted.[193] So extensive is the relationship that, according to a Mexican government estimate in 2010, criminal organizations acting in collusion with corrupt officials control as much as seventy-one per cent of national territory.[194] However, the degree of collusion is not uniform; it varies and corresponds to certain geographic zones. In his study of drug cartels in Mexico and Colombia, Gustavo Duncan posits that there are three types of geographic spaces to examine. In one type, he observes, drug cartels exercise greatest control in rural areas, marginal(ized) neighbourhoods (including in large cities), and smaller cities.[195] In such places, the social influence of drug trafficking is at its peak, and the cartels create regular armies that establish monopolistic control over the local order.[196] Duncan observes that the state in such places (and peripheral to much larger urban centres) is effectively absent and the cartels maintain a monopoly on social coercion and violence.[197] As one Mexican elected official asserts, “I have no doubt that organized crime rules. ... There are whole neighborhoods controlled by criminals. Every day, there are more luxury homes built where we know they live without fear.”[198] Not surprisingly, this power extends into the formal political arena. Duncan posits that the drug cartels “decide who can participate and win local elections, who can be appointed to public office, and which candidates the population has to vote for in presidential and congressional elections.”[199] Given the power of the cartels, voters may end up being skeptical as to whether voting has any meaningful impact.[200]

This exercise of power can be contrasted with a second type of area—large cities. In those geographic spaces, Duncan argues, drug cartels maintain relatively less influence. He asserts that the interconnections between the cartels and politicians are limited to bribery, largely with the understanding that certain government authorities limit their efforts to suppress the activities of the drug cartels.[201] Duncan posits that bribery is not sufficient to decide elections, and that politicians must be wary of the press and non-governmental organizations pointing to a politician’s criminal acts and acceptance of bribes.[202] However, he notes that even in larger cities, marginalized communities and neighbourhoods may be subject to much greater levels of control by drug cartels as discussed above.

Lastly, the third type of area that Duncan identifies is that of middle-sized cities wherein state institutions, politicians and other sources of non-criminal social power still maintain an important status in the socio-political order. In these areas, the drug cartels exercise greater influence and power than they do in larger cities but less than what they exercise in rural villages and other sites identified above.[203] As Duncan argues, given the increasing power and influence of the drug cartels in certain areas, politicians will tend to rely increasingly on illegal money from drug cartels to win local elections.[204] In exchange, criminal organizations obtain some immunity to carry on with their operations.[205]

What this literature suggests is that drug cartels maintain significant power in Mexico. In much larger cities, their power may be limited with the exception of marginalized communities. By contrast, in rural areas and smaller cities they are the dominant power and have significant control over officials, politicians, and electoral politics. A challenge to their power should be viewed as “political”, even if their interests are not to assume direct control of the state, but to limit the state’s ability to affect their criminal enterprises.

B. Gang Activity in Central America

In addition to the political power and violence exercised by drug cartels, there are also several organized youth criminal gangs who similarly exercise substantial control over local populations in parts of Central America.[206] In recent years, scholars and journalists have paid greater attention to violence perpetrated by youth gangs in, among other countries, El Salvador, Honduras, and Guatemala.[207] These gangs include prominent groups such as the Mara Salvatrucha (MS-13) and the 18th Street Gang (M-18), both of which were first formed in the United States among disaffected immigrant and refugee youth.[208] During the 1990s and 2000s, because of their criminal activities, tens of thousands of these youths were deported from the United States to their countries of nationality in Central America.[209] With limited employment prospects, many adapted to their new surroundings by continuing their gang lifestyles.[210] The detrimental impacts of their presence were soon felt. Furthermore, gang membership swelled to such a significant degree (comprised of both those deported from the United States and recruitment among native-born youth) that it is believed that they outnumber military or law enforcement personnel.[211] In a postconflict society such as El Salvador,[212] MS-13 and M-18 have been able to acquire weapons with relative ease.[213] As with the cartels in Mexico, the gangs both compete with one another and also engage in violence against the government. The El Salvadoran government has employed forceful means to subdue and control the gangs, to which the latter have responded with brutal violence against other citizens and government actors.[214]

In spite of government efforts, the gangs exercise substantial de facto political power by virtue of their substantial membership, their access to weaponry, and the money they generate and retain through their criminal enterprises.[215] The UNHCR posits that in Central America, powerful gangs “may directly control society and de facto exercise power in the areas where they operate.”[216] Sonja Wolf asserts that wherever these gangs maintain a presence, “cliques establish an authority structure and norms that allow them to protect illicit markets and defend their territory against potential infiltrators. Citizens hoping to avoid physical harm have no choice but to comply with these rules.”[217] Although there is diversity among the different gangs, a common feature is their shared intolerance for opposition to, and “acts of disrespect” to, their power.[218] The UNHCR observes that any refusals to succumb to a gang’s demands, as well as any actions that challenge those demands, are subject to harsh reprisals.[219] Such demands include efforts at recruitment as well as—like drug cartels—the imposition of local taxes called renta.[220] The criminal activities of the gangs are varied but typically include murder, extortion, drug trafficking, robbery, kidnapping, smuggling, and human trafficking.[221]

The gangs’ exercise of political power is not solely related to their de facto control over local populations through violence and the collection of renta. Like the cartels in Mexico, some gang members actively seek to influence or control political agendas. Based on his interviews with El Salvadoran gang members, analyst Douglas Farah observes that such gangs are looking to influence political actors directly. He writes that gang “leaders are beginning to understand that territorial control and cohesion make it possible for them to wring concessions from the state while preserving [the] essence of their criminal character.”[222] This understanding has led to the gangs contemplating support for particular candidates “for local and national office in exchange for protection and the ability to dictate parts of the candidate’s agenda.”[223] This desire to actively influence political agendas and governance grew out of the El Salvadoran government’s negotiations with gang leaders. In order to stem the open violence between gangs and the ensuing high rate of homicides, the government had agreed to provide better living conditions in prisons for incarcerated gang members.[224] This accord purportedly led to a significant decrease in the murder rate, though crimes and criminal activity still persist.[225]

Like their counterparts in the drug cartels, the youth gangs in various Central American states exercise significant power and control over local populations. They are well armed and financed, and they challenge the state’s authority without seeking to overthrow the government directly and seize control over the reins of governance. The data suggest that they have also sought to influence politicians through support in order to shape government policies and their treatment of the gangs. As with many entities or groups that exercise power, there are those who do not comply or obey. I deal with such resistance next.

C. Resistance to Criminal Organizations

Due to the power of the drug cartels and the criminal gangs in Central America, many people have resisted such entities through various means. A rather significant form of resistance is the refusal to be conscripted into the criminal operations of these organizations or the subsequent departure from the gang without permission.[226] Another is the refusal to pay “extortion or other unlawful demands for money or services.”[227] A third mode of resistance is the active reporting of criminal activity by these groups to authorities.[228] A fourth way involves direct and armed confrontation with such groups.[229] As indicated above, unless there is state involvement, courts have been largely reluctant to recognize opposition to criminal organizations as manifesting a political opinion for the purposes of granting asylum, even where they recognize a well-founded fear of persecution.

Given the prevalence and increasing power of drug cartels and other criminal organizations, jurists should shift away from the simplistic understanding that what is “political” is solely about government power or opposition to it. Applying the UNHCR’s definition of political opinion where resisters refuse to join criminal gangs, blow the whistle on their criminal activities, or even, however rarely, confront such power either through the use of force or threats of the use of force, such acts should be seen as manifesting a political opinion on a matter in which the machinery of society may be engaged. The UNHCR observes that “[i]n certain contexts, expressing objections to the activities of gangs or to the State’s gang-related policies may be considered as amounting to an opinion that is critical of the methods and policies of those in power and, thus, constitute a ‘political opinion’ within the meaning of the refugee definition.”[230] What is important to note here is the use of the word “or” indicating that objections to the activities of gangs, solely, may constitute a political opinion. Also, as with other political opinion analyses, the UNHCR posits that gang-related refugee claims may be analyzed on the basis of an actual or imputed political opinion with respect to gangs, other segments of society such as vigilante groups which target gangs, or the state’s policies toward gangs.[231]

The UNHCR highlighted one case in support of the notion that opposition to criminal activity in itself (absent the involvement of state actors) may constitute a political opinion. The case involved a Guatemalan asylum seeker who had a well-founded fear of persecution due to his refusal to join a criminal gang.[232] The United States immigration judge hearing the case recognized that the asylum seeker’s well-founded fear of persecution was linked to his political opinion. The political opinion was constituted through his support for the notion of the rule of law, namely, the earning of an honest living in combination with opposing and refusing to be a part of gang life and its accompanying illegal activities. The decision represents a more realistic, reflective, and generous understanding of the “political” as being connected to power, but not tethered to the state. Yet amidst the much larger body of binding jurisprudence to the contrary, the decision is at the moment an outlier.

In addition to the UNHCR’s broadened definition of “political opinion”, the Michigan Colloquium’s definition would likely also contemplate opinions with respect to such criminal organizations.[233] Both the cartels and youth gangs have the capacity to and indeed do exercise societal power or authority, even though they do so illegitimately. At the very least, they are informally systematized and exercise de facto societal power. These organizations exercise this power through imposition of renta, as well as through fear, their use of violence and access to weapons, their sheer numbers, and their involvement in corrupting the formal political system and building alliances with officials and politicians.

As a consequence of the narrower interpretations of the “political”, as set out in Part II of this article, were violent crimes to be committed against such cartels, gangs, and their members, such conduct would not be considered “political crimes” (unless, perhaps, those targeted were somehow connected to the state as suggested in the cases discussed above[234]). It is understandable that jurists in the North would find armed resistance against a criminal organization to fall outside the legitimate scope of the political crimes doctrine. Much of the jurisprudence has clearly demonstrated that courts are favourable, when at all, to recognizing a crime to be political when the target is a state or its actors. This perception neglects the reality that cartels have sufficient power and resources to counter the power of states without seeking to govern qua the state. Cartels and youth gangs create and enforce their norms so as to facilitate the smooth running of their commercial operations. It is helpful too to remember Justice Kirby’s perspective on interpreting the Refugee Convention in connection with article 1F(b). Specifically, he noted that the Convention was intended to function in a wider world and to address the realities of “political crimes” in societies quite different from the one that exists in refugee-receiving states like Australia.[235] He observed that “[w]hat is a ‘political crime’ must be judged, not in the context of the institutions of the typical ‘country of refuge’ but, on the contrary, in the circumstances of the typical country from which applicants for refugee status derive.”[236] The political realities and conflicts that exist, inter alia, in Mexico and El Salvador are not like those in other states in the North. A reflective and purposive approach to interpreting the Refugee Convention needs to countenance such realities.

What the drug cartels and other organized criminal outfits represent is that legal systems must adapt to the fact that individuals cannot always be easily compartmentalized into simplistic categories such as “innocent civilian” (non-political target) or government or military official or agent (political target). There are those who fall somewhere in between—those who are both non-state actors and legitimate targets for political opposition. Furthermore, where organized criminals qua civilians engage in oppression against others through the use of their superior financial and military power, they are no longer innocent bystanders or ordinary citizens, even though they are not government actors either. Were other citizens to challenge such oppressive non-state power with violence, such actions should not automatically be categorized as serious non-political crimes or acts of terrorism.[237] Nor should courts and tribunals be quick to dismiss non-violent opposition to criminal organizations, gangs, and drug cartels as falling outside the parameters of a political opinion.

Conclusion

In this article, I have argued that the notion of what constitutes the “political” within the context of the 1951 Refugee Convention should be interpreted in a generous and purposive manner that expands the meaning of the term to apply to opinions about and crimes against non-state actors. In contrast to the narrower approach adopted by numerous courts which associates the “political” with the state, the UNHCR, jurists, legislators, and prominent refugee law scholars have provided such generous and purposive interpretations. Among them, the UNHCR has arguably provided the widest interpretation. Rather than being exclusively limited to official institutions of the state or groups seeking to displace or change the policies of the state, the concept of the “political” should refer to the exercise of power within a society such that the “political” goes beyond the state to include sections within society such as, but not limited to, criminal organizations.

Expanding the notion of the “political” would inevitably affect what constitutes a “political opinion” and a “political crime”. It should be noted, however, that expanding what constitutes political crimes does not mean that it becomes legitimate to engage in unrestrained violent conduct against non-state actors who happen to exercise power but do so in non-lethal but nevertheless violent ways. Also, the state is not removed from the scenario altogether. It should be recalled that refugee protection arises only when the asylum seeker’s country of nationality is unable or unwilling to provide protection. Once it is determined that the state is unable or unwilling to provide protection, there must be some nexus to the political opinion of the resister. It may very well be the case that a drug cartel or youth gang decides to persecute someone for reasons other than an individual’s opposition to their activities. Given that the failure or unwillingness of the state to protect comes into play at an earlier stage of the analysis, there is no need to include in the analysis the role or presence of the state when interpreting the notion of the “political” with respect to “political opinion” or to “political crimes”. As the foregoing has attempted to show, power does not reside solely within the state, a reality that international refugee law should reflect.

Appendices