Immigration and Refugee Law ♦ Online 61 Va. J. Int’l L. Online 1 (2020)

Refoulement as a Corollary of Hate: Private Actors and International Refugee Law

ISHITA CHAKRABARTY

While researchers in the field of refugee studies have set out to influence the policy decisions of host states, the reverse situation, where a host state’s policy decisions have shifted refugee movements, has been little discussed. With the increasing incidence of hate crimes, refugees now find themselves in situations similar to those which they were trying to escape. The issue of constructive refoulement—refoulement not by the outright return of refugees, but in the form of hostile practices such as detention practices, denial of employment, and inadequate reception conditions which compel a refugee’s return—has gained prominence. This Essay seeks to build on this less-explored idea that refugees can be refouled through the actions of private actors where there is a real risk of degradation involved which jeopardizes the individual’s rights to life and freedom from cruel, inhuman, and degrading treatment. In this Essay, I examine international treaties, and jurisprudence from international courts, and the existing international human rights framework, and argue that the rising incidences of hate crimes could amount to constructive refoulement under Article 33 of the Refugee Convention and implicate the host state’s international responsibility. The scope of hate crimes within the Article is confined to acts that go beyond mere verbal abuse and include acts of arson, destruction of property, and bodily violence.