Protecting Those Who Go Beyond the Law: Contemplating Refugee Status for Individuals Who Challenge Oppression Through Resistance
75 Pages Posted: 17 Jul 2012 Last revised: 9 Nov 2014
Date Written: 2011
A discrete phenomenon has been emerging within the practice of refugee law whereby individuals who engage in acts of resistance waged against oppression in their countries of nationality have either been granted asylum or have had their actions recognized as forms of political opinion making them eligible for asylum. Through an examination of the decisions of administrative adjudicators and appellate judges in various jurisdictions, this article argues that three significant observations emerge from such case law. First, the decisions demonstrate the capacity of individuals to challenge injustices and oppression through an interpretation of applicable legal and ethical principles followed by their enforcement. These decisions also illustrate the capacity of individuals to act as transformative human agents within the international legal system, even if incapable of being recognized as full legal persons under international law. Second, the decisions represent an important legitimization of and support for such acts of resistance, even if implicit. Third, granting asylum to individuals who have engaged in resistance also challenges a deeply ingrained tendency to view refugees as idealized and/or hapless victims who have been attacked for some immutable characteristic, rather than those who take albeit provocative but justified actions and who as a consequence face victimization.
Keywords: resistance, refugee law, agency, victim, victimization, political opinion, refugee status
JEL Classification: K33, K23, K42
Suggested Citation: Suggested Citation