Refugee Law: Complementing Accountability for International Crimes

September 21, 2012

According to United Nations statistics South Africa accounted for one fifth of the world’s asylum applications, registering a staggering 180 600 applications in 2010 alone, making South Africa the most sought after destination for asylum seekers in the world. Not every one of those persons would have been successful; in fact, if South Africa’s immigration authorities did their job properly, some would have been turned  away, the deserving would be allowed to stay and some would have been found to be ineligible. With regard to ineligibility, South Africa is, under international refugee law,  prohibited from extending protections to persons if there is reason to believe that he or she has been involved in the commission of war crimes, crimes against humanity and genocide. This prohibition is contained in the exclusion provisions, found in virtually every domestic refugee act around the world, and is perhaps a country’s first line of defence against becoming a safe haven for international offenders.

The exclusion provisions have two objectives.

First, is to protect refugee status from being abused by those who are undeserving, the rationale being that that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a body of law designed to protect those refugees. Or in the words of the Canadian Courts:

When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status

Second, is to ensure that those who have committed grave crimes do not escape prosecution.

When we talk about combating impunity for international crimes, the first thought is generally the work done by international institutions, such as International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and, more recently, the International Criminal Court (ICC). Because these institutions have limited mandates, domestic jurisdictions have also been active in this area and to date there have been almost 40 countries involved in criminal prosecutions of people involved in international crimes, none of which however have taken place in Africa. (Africa may however see its first prosecutions in the near future: Senegal, following the International Court of Justice’s decision, must prosecute Hissene Habre or extradite him to stand trial in Belgium; and a South African High Court has ordered an investigation into crimes against humanity committed in Zimbabwe following legal action initiated by SALC.

Although  international criminal law envisages the domestic prosecution of international crimes, in Africa this easier said than done. A number of challenges, including the absence of adequate legislative frameworks, lack of resources (both in terms of cost and expertise), lack of capacity and the lack of political can frustrate efforts at accountability.

The inability or unwillingness of states to prosecute perpetrators of international crimes cannot however be proffered as justification for inaction. Refugee law provides a non-criminal, and perhaps less resource intensive, remedy that can be used to address war crimes, adding to the deterrent effect the criminal remedies are attempting to achieve.

In July 2012 for example,  the Court of Appeal in the United Kingdom found that a Zimbabwean national who was instrumental in farm invasions in Zimbabwe was excludable on the basis that her conduct fell within the Rome Statute’s definition of crimes against humanity.

In South Africa these principles will be put to the test in October when SALC and the Consortium for Migrant and Refugee Rights South Africa (CoRMSA) argue before the South Africa High Court that former Rwandan general and suspected war criminal, Faustin Kayumba Nyamwasa, was unlawfully granted refugee status in South Africa.

The crux of this case is that because Nyamwasa is believed to have committed war crimes, forming the basis for an extradition request from Spain, the South African authorities failed to properly apply the exclusion clause. Exclusion offences trigger other binding international law obligations that South Africa has assumed, either through ratification of relevant international law treaties or obligations that exist by virtue of their status under international customary law, that must be considered, and adhered to, in conjunction with its international refugee law obligations. By granting refugee status to Nyamwasa South Africa is not only acting in contravention of its own international obligations to ensure that perpetrators of international crimes do not escape justice it is frustrating the attempts of Spain in trying to give effect to the very same obligations South Africa has chosen to ignore.

It is hoped that this case will provide practical and substantive content to South Africa’s exclusion provisions. If the Nyamwasa decision is allowed to stand it will ignore the importance of preserving refugee status for only those who are in genuine need of protection; this is integral to maintaining the credibility and integrity of the refugee protection regime, if not its sustainability. It will also send a signal to war criminals the world over that they will find a safe haven here, a haven where they might be actively protected as refugees

Exclusion assessments therefore, if done properly and although not a criminal inquiry,  can  serve to assist in the detection and apprehension of perpetrators of international crimes and should be used to facilitate further investigations with a view to facilitating either extraditions or domestic prosecutions.

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